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EFF's Deeplinks Blog: Noteworthy news from around the internetarBMG v. Cox: ISPs Can Make Their Own Repeat-Infringer Policies, But the Fourth Circuit Wants A Higher "Body Count"https://www.eff.org/ar/deeplinks/2018/02/bmg-v-cox-isps-can-make-their-own-repeat-infringer-policies-fourth-circuit-wants
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week’s <em>BMG v. Cox </em><a href="https://www.eff.org/document/bmg-v-cox-fourth-circuit-opinion" title="BMG v. Cox Fourth Circuit Opinion">decision</a> has gotten a <a href="https://www.techdirt.com/articles/20180201/15205039136/appeals-court-makes-mess-copyright-law-concerning-isps-safe-harbors.shtml">lot</a> of attention for its confusing take on secondary infringement liability, but commentators have been too quick to dismiss the implications for the DMCA safe harbor. Internet service providers are still not copyright police, but the decision will inevitably encourage ISPs to act on dubious infringement complaints, and even to kick more people off of the Internet based on unverified accusations.&#13;</p>
<p>This long-running case involves a scheme by copyright troll <a href="https://www.eff.org/deeplinks/2015/04/call-canada-fix-rightsholder-abuse-its-copyright-notice-system">Rightscorp</a> to <a href="https://torrentfreak.com/rightscorp-revenue-from-piracy-settlements-down-48-in-2017-171125/">turn a profit</a> for shareholders by demanding money from users whose computer IP addresses were associated with copyright infringement. Turning away from the tactic of filing lawsuits against individual ISP subscribers, Rightscorp began sending infringement notices to ISPs, coupled with demands for payment, and insisting that ISPs forward those notices to their customers. In other words, Rightscorp and its clients, including BMG, sought to enlist ISPs to help coerce payments from Internet users, threatening the ISPs themselves with an infringement suit if they don’t join in. Cox, a midsize cable operator and ISP, pushed back and was punished for it.&#13;</p>
<p>Before the suit, Cox had quite reasonably decided to stick up for its customers by refusing to forward Rightscorp’s money demands. Going along would have put Cox’s imprimatur on Rightscorp’s vaguely worded threats. The Digital Millennium Copyright Act safe harbors, which protect ISPs and other Internet services from copyright liability, don’t require ISPs who simply transmit data to respond to infringement notices, much less forward them.&#13;</p>
<p>Unfortunately, Cox failed to comply with another of the DMCA’s requirements. To receive protection, an ISP must “reasonably implement” a policy for terminating “subscribers and account holders” who are “repeat infringers” in “appropriate circumstances.” Past decisions haven’t defined what “appropriate circumstances” are, but they do make clear that a repeat infringer policy has to be more than mere lip service. Cox’s defense foundered—as many do—on a series of unfortunate emails. As shown in court, Cox employees discussed receiving many infringement notices for the same subscriber, and giving repeated warnings to those subscribers, but never actually terminating them, or terminating them only to reconnect them immediately. The emails painted a picture of a company only pretending to observe the repeat-infringer requirement, while maintaining a real policy of never terminating subscribers. The reason, said the Cox employees to one another, was to eke out a bit more revenue.&#13;</p>
<p>Despite the emails, BMG’s case had a weakness: the notices from Rightscorp and others were mere <em>accusations</em> of infringement, their accuracy and veracity far from certain. Nothing in the DMCA requires an ISP to kick customers off the Internet based on mere accusations. What’s more, the “appropriate circumstances” for terminating someone’s entire Internet connection are few and far between, given the Internet’s still-growing importance in daily life. As the Supreme Court <a href="https://www.eff.org/deeplinks/2017/06/supreme-court-strikes-down-social-media-ban-sex-offenders">wrote</a> last year, “Cyberspace . . . in general” and “social media in particular” are “the most important places (in a spatial sense) for the exchange of views.” Even more than a website or social network, an ISP can and should save termination for the most egregious violations, backed by substantial evidence.&#13;</p>
<p>The Court of Appeals for the Fourth Circuit <a href="https://www.eff.org/document/bmg-v-cox-fourth-circuit-opinion">acknowledged this</a>, to a point. The court was “mindful of the need to afford ISPs flexibility in crafting repeat infringer policies, and of the difficulty of determining when it is ‘appropriate’ to terminate a person’s access to the Internet.” The court ruled that Cox had lost its safe harbor, not because its termination policy was too lenient, but because it failed to implement its own policy. “Indeed,” wrote the court, “in carrying out its thirteen-strike process, Cox very clearly determined not to terminate subscribers who in fact repeatedly violated the policy.”&#13;</p>
<p>The court also ruled that “repeat infringer” isn’t limited to those who are found liable by a court. But the court stopped short of holding that mere accusations should lead to terminations. The court pointed to “instances in which Cox failed to terminate subscribers whom Cox employees regarded as repeat infringers” after conversations with those subscribers, implying that they, at least, should have been terminated.&#13;</p>
<p>The court should have stopped there. Unfortunately, it also pointed to the number of actual suspensions Cox engaged in—less than one per month, compared to thousands of warnings and temporary suspensions—as a factor in denying Cox the safe harbor. That focus on “body counts” ignores the reality that terminating home Internet service is akin to <a href="https://arstechnica.com/tech-policy/2013/06/france-removes-internet-cut-off-threat-from-its-anti-piracy-law/">“cutting off someone's water." </a>And the court didn’t acknowledge that Cox’s decision to stop accepting Rightscorp’s notices—which included demands for money—protected Cox customers from an exploitative <a href="https://www.techdirt.com/articles/20150818/17282532001/court-lets-malibu-media-move-forward-with-discovery-copyright-case-blocks-speculative-invoicing.shtml">“speculative invoicing”</a> business.&#13;</p>
<p>So where does this decision leave ISPs? Certainly, they should not repeat Cox’s mistake by making it clear that their termination policy is an illusion. But nothing in the decision forbids an ISP from standing up for its customers by demanding strong and accurate evidence of infringement, and reserving termination for the most egregious cases—even if that makes actual terminations extremely rare.&#13;</p>
<p>The case isn’t over; losing the DMCA safe harbor doesn’t mean that Cox is liable for copyright infringement by its customers. BMG still needs to show that Cox is liable under the contributory, vicarious, or inducement theories that apply to all service providers. The Fourth Circuit ruled that the jury got the wrong instructions, and that contributory liability requires more than a finding that Cox “should have known” about customers’ infringement. Because of that faulty instruction, the appeals court sent the case back for a new trial. The court’s ruling on inducement liability was <a href="https://www.techdirt.com/articles/20180201/15205039136/appeals-court-makes-mess-copyright-law-concerning-isps-safe-harbors.shtml">confusing</a>, as it seemed to conflate “intent” with “knowledge.” It’s important that the courts treat secondary liability doctrines thoughtfully and clearly, as they have a profound effect on how Internet services are designed and what users can do on them. That’s why, while we expect to see more suits like this, we hope that ISPs will continue to stand up for their users as Cox has in defending this one.</p>
</div></div></div>Mon, 05 Feb 2018 21:09:22 +000098013 at https://www.eff.orgDMCAFile SharingCopyright TrollsMitch StoltzThe Music Industry Shouldn't Be Able To Cut Off Your Internet Accesshttps://www.eff.org/ar/deeplinks/2016/12/music-industry-shouldnt-be-able-cut-your-internet-access
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><h3 class="normal"><b>EFF, Public Knowledge, and the Center for Democracy and Technology Urge The United States Court of Appeals for the Fourth Circuit to Protect Internet Subscribers in BMG v. Cox.</b></h3>
<p class="normal">No one should have to fear losing their Internet connection because of unfounded accusations. But some rights holders want to use copyright law to force your Internet service provider (ISP) to cut off your access whenever they say so, and in a case the <a href="https://cdt.org/blog/an-unjust-repeat-infringer-case/">Washington Post called</a> <a href="https://www.washingtonpost.com/news/the-switch/wp/2016/08/12/the-copyright-case-that-should-worry-all-internet-providers/?utm_term=.69a1ab53d24c">“the copyright case that should worry all Internet providers,”</a> they’re hoping the courts will help them.</p>
<p class="normal">We first wrote about this case—<a href="https://www.eff.org/deeplinks/2014/12/music-publishers-sue-cox-not-kicking-people-internet">BMG v. Cox Communications</a>—when it was filed back in 2014, and last month, EFF, Public Knowledge (PK) , and the Center for Democracy and Technology (CDT) urged the Court of Appeals for the Fourth Circuit to overturn a ruling that ISP Cox Communications was liable for copyright infringement. EFF, PK and CDT advised the court to<a href="https://cdt.org/blog/an-unjust-repeat-infringer-case/"> consider the importance of Internet access</a> in daily life in determining when copyright law requires an ISP to cut off someone’s Internet subscription.</p>
<p class="normal">The case turns in part on a provision in copyright law that gives Internet intermediaries a safe harbor—legal protection against some copyright infringement lawsuits — provided they follow certain procedures. Online platforms like Facebook and YouTube, along with other Internet intermediaries, have to “reasonably implement” a policy for terminating “subscribers and account holders” that are “repeat infringers” in “appropriate circumstances.” But given the importance of Internet access, the circumstances where it’s appropriate to cut off a home Internet subscription entirely are few and far between.</p>
<p class="normal">The law as written is flexible enough that providers can design and implement policies that make sense for the nature of their service and their subscribers’ circumstances. A repeat infringer policy for the company that provides your link to the Internet as a whole should take into account the essential nature of Internet access and the severe harm caused by disconnection.</p>
<p class="normal">But music publisher BMG wants to use this provision to force ISPs to become tougher enforcers of copyright law. According to BMG, ISPs should be required both to forward rights holders’ threatening demand letters to their subscribers and terminate a subscriber’s Internet access whenever rights holders allege that person has repeatedly violated copyright law. A subscriber is a “repeat infringer” and subject to termination, they argue, whenever they say so.</p>
<p class="normal">Unfortunately, the district court agreed with the music publisher, ruling that notices of copyright infringement sent by copyright troll Rightscorp were enough for Cox to know that a subscriber was repeatedly using its network to infringe copyright. Because Cox failed to terminate enough of those subscribers on the basis of Rightscorps’ accusations, Judge Liam O’Grady of U.S. District Court for the Eastern District of Virginia ruled that Cox was ineligible for the safe harbor and liable for millions of dollars in damages for contributory copyright infringement. </p>
<p class="normal">Cox’s <a href="https://torrentfreak.com/images/openingbrief.pdf">appeal of the ruling</a> raises two very important issues: (1) Who should be considered a “repeat infringer” who should be cut off from the Internet, and (2) whether ISPs must either cede to rights holders’ demands or monitor their subscribers’ Internet habits to avoid liability. </p>
<p class="normal"><b>Who should determine when someone is a “repeat infringer”?</b></p>
<p class="normal">The law as it’s written doesn’t require ISPs to terminate their subscribers whenever repeated <i>accusations</i> of infringement are made. As Cox's brief explains, elsewhere in copyright law, terms like “alleged” or “claimed” infringement indicate that allegations are relevant. The “repeat infringer” provision l<a href="https://torrentfreak.com/images/openingbrief.pdf">eaves them out</a>. The law only requires ISPs to have a policy for termination of actual “repeat infringers,” not “alleged” or “claimed” repeat infringers. </p>
<p class="normal">In giving rightsholders the ability to determine for themselves who counts as a “repeat infringer,” Judge O’Grady created a powerful tool they can use to pressure ISPs to comply with their copyright enforcement schemes. And they get an extra boon as well — they can shake down Internet subscribers for settlement fees with threats that they’ll lose their Internet access.</p>
<p class="normal">This is especially worrisome in light of the frequency of false or erroneous allegations of infringement–-on Cox’s network alone, for example, Rightscorp misidentified <a href="https://torrentfreak.com/images/openingbrief.pdf">hundreds </a>of files as infringing. In one case, for example, Rightscorp identified <a href="https://torrentfreak.com/images/openingbrief.pdf">“a Grateful Dead song that was actually an article about a Grateful Dead performance.</a>”</p>
<p class="normal">Faced with a dubious notice, ISPs are ill-suited to investigate whether the allegations it contains are true. Because Cox doesn’t host subscribers’ content but only provides the network through which their data travels, to examine whether that data infringes copyright, Cox would need to use deep-packet inspection to investigate every packet that subscriber sends and receives. That level of monitoring is frighteningly privacy-invasive and clearly not contemplated by the law.</p>
<p class="normal">Even if ISPs <i>did</i> examine their subscribers’ traffic, determining whether a particular file is infringing (rather than in the public domain, licensed, or a fair use) is a difficult call even for courts and copyright lawyers, and even for the rightsholders themselves. Where an Internet subscriber’s very connection to the larger world is at risk, courts should hesitate before asking ISPs to make that call on their own.</p>
<p class="normal"><i>IP Addresses are </i><a href="https://www.eff.org/files/2016/09/22/2016.09.20_final_formatted_ip_address_white_paper.pdf"><i>"Unreliable Informants</i></a><a href="https://www.eff.org/files/2016/09/22/2016.09.20_final_formatted_ip_address_white_paper.pdf"><i>.”</i></a></p>
<p class="normal">Your ISP can see only the Internet Protocol (IP) address associated with your account, not who is using that address at any one time. This means that infringement notices that identify an IP address only cannot show whether the subscriber or a different person was using that connection at the time. Any one IP address can provide Internet access to any number of people; many people share their Internet connections within their household or with their community, and they generally aren’t able to control what others do online. In this case, many of Rightscorp’s notices <a href="https://www.eff.org/document/eff-pk-cdt-amicus-brief-bmg-v-cox">identified infringement carried out by third parties</a>, and not the subscriber themselves. Terminating that subscriber’s account would be unfair to that subscriber, and would cut-off Internet access to everyone else sharing that connection.</p>
<p class="normal"><i>A court, not a rights holder or ISP should make the call.</i></p>
<p class="normal">The only way to reliably determine when a subscriber is a repeat infringer is when that person has been found by a court of law to have repeatedly committed copyright infringement. The law should allow ISPs to insist on an adjudication of infringement before terminating someone’s Internet account.</p>
<p class="normal"><b>Holding ISPs like Cox liable for contributory infringement opens the door to widespread monitoring and filtering.</b></p>
<p class="normal">As Cox's brief <a href="https://torrentfreak.com/images/openingbrief.pdf">explains</a>, even without protection of the safe harbor, ISPs like Cox aren’t necessarily liable merely because they provide Internet service to someone who infringed a copyright. Two landmark Supreme Court cases, <a href="https://www.law.cornell.edu/supct/html/04-480.ZO.html"><i>Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd</i></a><i>., </i>and <a href="https://www.law.cornell.edu/copyright/cases/464_US_417.htm"><i>Sony Corp. of America v. Universal Studios</i></a> made clear that if a service is capable of significant lawful uses, and the provider doesn’t actively encourage users to commit copyright infringement, the provider shouldn’t be held responsible when someone nonetheless uses the service unlawfully. And, a provider’s mere failure to act doesn’t qualify as active encouragement. In ignoring this important rule and holding Cox liable for contributory copyright infringement, the district court created the risk that providers like Cox may have to choose between complying with rightsholders’ termination demands or monitoring and filtering their subscribers’ online activities if they want to avoid liability. </p>
<p class="normal">Like <a href="http://arstechnica.com/tech-policy/2013/06/france-removes-internet-cut-off-threat-from-its-anti-piracy-law/">“cutting off someone’s water”</a>, terminating someone’s Internet connection should be, at least, a measure of last resort. As Cox’s appeal continues, we hope this time the court gets it right.</p>
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</div></div></div>Mon, 12 Dec 2016 19:46:03 +000094131 at https://www.eff.orgCopyright TrollsFile SharingThe "Six Strikes" Copyright Surveillance MachineKerry SheehanEFF Lawsuit Takes on DMCA Section 1201: Research and Technology Restrictions Violate the First Amendmenthttps://www.eff.org/ar/press/releases/eff-lawsuit-takes-dmca-section-1201-research-and-technology-restrictions-violate
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Future of Technology and How It’s Used Is At Stake</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Washington D.C.—The Electronic Frontier Foundation (EFF) sued the U.S. government today on behalf of technology creators and researchers to overturn onerous provisions of copyright law that violate the First Amendment.</p>
<p class="MsoNormal">EFF’s <a target="_blank" href="https://www.eff.org/document/1201-complaint">lawsuit</a>, filed with co-counsel Brian Willen, Stephen Gikow, and Lauren Gallo White of Wilson Sonsini Goodrich &amp; Rosati, challenges the <a target="_blank" href="https://www.eff.org/issues/drm">anti-circumvention</a> and anti-trafficking provisions of the 18-year-old <a target="_blank" href="https://www.eff.org/issues/dmca">Digital Millennium Copyright Act</a> (<a href="https://www.eff.org/issues/dmca-rulemaking">DMCA</a>). These provisions—contained in Section 1201 of the DMCA—make it unlawful for people to get around the software that restricts access to lawfully-purchased copyrighted material, such as films, songs, and the computer code that controls vehicles, devices, and appliances. This ban applies even where people want to make noninfringing fair uses of the materials they are accessing.<span> </span></p>
<p class="MsoNormal">Ostensibly enacted to fight music and movie piracy, Section 1201 has long served to <a target="_blank" href="https://www.eff.org/files/2014/09/16/unintendedconsequences2014.pdf">restrict people’s ability</a> to access, use, and even speak out about copyrighted materials—including the software that is increasingly embedded in <a target="_blank" href="https://www.eff.org/deeplinks/2015/01/who-will-own-internet-things-hint-not-users">everyday things</a>. The law imposes a legal cloud over <a target="_blank" href="https://www.eff.org/deeplinks/2016/01/why-owning-your-stuff-means-owning-your-digital-freedom">our rights to tinker</a> with or repair the devices we own, to convert <a target="_blank" href="https://www.eff.org/deeplinks/2015/11/new-dmca-ss1201-exemption-video-games-closer-look">videos</a> so that they can play on multiple platforms, remix a video, or conduct independent security research that would reveal dangerous security flaws in our computers, <a target="_blank" href="https://www.eff.org/deeplinks/2015/07/jeep-hack-shows-why-dmca-must-get-out-way-vehicle-security-research">cars</a>, and <a target="_blank" href="//www.eff.org/deeplinks/2016/04/pacemakers-and-piracy-why-dmca-has-no-business-medical-implants">medical devices</a>. It criminalizes the creation of tools to let people access and use those materials.</p>
<p class="MsoNormal">Copyright law is supposed to exist in harmony with the First Amendment. But the prospect of costly legal battles or criminal prosecution stymies creators, academics, inventors, and researchers. In the complaint filed today in U.S. District Court in Washington D.C., EFF argues that this violates their First Amendment right to freedom of expression.</p>
<p class="MsoNormal">“The creative process requires building on what has come before, and the First Amendment preserves our right to transform creative works to express a new message, and to research and talk about the computer code that controls so much of our world,” said EFF Staff Attorney Kit Walsh. “Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.”</p>
<p class="MsoNormal">EFF is representing plaintiff Andrew “<a target="_blank" href="http://www.bunniestudios.com/blog/">bunnie</a>” Huang, a prominent computer scientist and inventor, and his company Alphamax LLC, where he is developing devices for editing digital video streams. Those products would enable people to make innovative uses of their paid video content, such as captioning a presidential debate with a running Twitter comment field or enabling remixes of high-definition video. But using or offering this technology could run afoul of Section 1201.</p>
<p class="MsoNormal">“Section 1201 prevents the act of creation from being spontaneous,’’ said Huang. “Nascent 1201-free ecosystems outside the U.S. are leading indicators of how far behind the next generations of Americans will be if we don’t end this DMCA censorship. I was born into a 1201-free world, and our future generations deserve that same freedom of thought and expression.”</p>
<p><span>EFF is also representing plaintiff <a target="_blank" href="https://www.cs.jhu.edu/faculty/matthew-d-green/">Matthew Green</a>, a computer security researcher at Johns Hopkins University who wants to make sure that we all can trust the devices that we count on to communicate, underpin our financial transactions, and secure our most private medical information. Despite this work being vital for all Americans' safety, Green had to seek an exemption from the Library of Congress last year for his security research. </span>&#13;</p>
<p class="MsoNormal">“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”</p>
<p class="MsoNormal">For the complaint:<br /><a target="_blank" href="https://www.eff.org/document/1201-complaint">https://www.eff.org/document/1201-complaint</a></p>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Kit</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Walsh</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:kit@eff.org">kit@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Adam</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Schwartz</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Senior Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:adam@eff.org">adam@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Corynne</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">McSherry</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Legal Director</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:corynne@eff.org">corynne@eff.org</a></div></div></div> </div>
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</div></div></div>Thu, 21 Jul 2016 12:58:49 +000092413 at https://www.eff.orgKaren GulloMore Copyright Law ≠ Less Copyright Infringementhttps://www.eff.org/ar/deeplinks/2016/07/more-copyright-law-less-copyright-infringement
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>If you only listened to entertainment industry lobbyists, you’d think that music and film studios are fighting a losing battle against copyright infringement over the Internet. Hollywood representatives routinely tell policymakers that the only response to the barrage of online infringement is to expand copyright or even create new copyright-adjacent rights.&#13;</p>
<p>New research from the United Kingdom paints a <a href="/files/2016/07/20/oci-tracker-6th-wave-march-may-2016.pdf">very different picture of the state of online media consumption</a> (PDF). The new report shows that unauthorized access to copyrighted media is on a steady decline, with only 5% of Internet users getting all of their online media through rogue methods, and only 15% of users consuming <i>any</i> infringing content. <a href="http://www.economist.com/news/business/21696962-more-people-are-paying-stream-music-industry-still-wobbly-scales-dropped">Similar studies in the US</a> have shown a steady decline in unauthorized downloads here too. The numbers show that if Hollywood really wants to curb infringing media consumption, the best thing it can do is <i>improve its official offerings</i>.&#13;</p>
<h3>Consumers Choose the Best Product</h3>
<p>For the past five years, the UK’s Intellectual Property Office (IPO) has produced a study on how people in the UK access content online, including both authorized and unauthorized methods. The latest report—<a href="http://www.telegraph.co.uk/technology/2016/07/04/internet-piracy-falls-to-record-lows-amid-rise-of-spotify-and-ne/">released earlier this month</a>—found that consumption of infringing content online is now at the lowest point it’s been for the history of the study.&#13;</p>
<p>One of the key factors IPO found contributing to the decline is the rise of online subscription services—particularly for music. It’s easy to see why consumers are moving to services like Spotify for their music—they’re convenient for many users and they offer good selection. When IPO asked people what would make them stop accessing content via unauthorized methods, the most popular responses were to make legal services cheaper (24%) and for them to carry all of the content consumers want (20%).&#13;</p>
<p>IPO noted that when users choose where to get content online, legality isn’t much of a factor. Consumers look for convenience, selection, price, and quality. Simply put, listeners have moved to Spotify because they consider it the best product, legal or not.&#13;</p>
<p>In contrast with music, infringement of films and TV shows went up slightly (though it was still minuscule compared to viewership via legal methods). Given users’ stated reasons for using infringing methods, it follows that the relatively limited selection of content on streaming video services has played a role in some consumers’ reluctance to switch to them.&#13;</p>
<p>To be clear, we’re not cheerleading for streaming services. Most of those services lock down media in digital rights management (DRM) technology. Thanks to <a href="https://www.eff.org/deeplinks/2016/04/save-itunes">laws in the U.S. and many other countries that make it a crime to circumvent DRM</a>, streaming services create legal uncertainty over what consumers can do with the content they access, potentially <a href="https://www.eff.org/deeplinks/2016/05/yes-all-drm">outlawing uses that wouldn’t otherwise constitute copyright infringement</a>. The IPO report makes it clear that users are willing to pay for authorized methods of accessing content when those methods are the most convenient. If Hollywood invested in higher quality services for sharing content with fans that <i>didn’t</i> rely on DRM, that would do nothing but ease consumers’ transition to them.&#13;</p>
<h3>ISP “Education” Programs Don’t Work</h3>
<p>While there might be disagreement about how the entertainment industry can create more loyal, paying customers, one thing is certain: pressuring Internet service providers to enforce copyright does very little to deter users. We’ve written several times about the <a href="/issues/six-strikes-copyright-surveillance-machine">Copyright Alert System</a>—aka “Six Strikes”—a system whereby ISPs allow major entertainment companies to monitor customers’ activity for unauthorized sharing of films and TV shows. CAS launched in the US in 2013 and <a href="https://torrentfreak.com/uk-anti-piracy-education-campaign-launched-quietly-151201/">the UK launched a similar program in 2015</a>.&#13;</p>
<p>The IPO study found that these attempts by ISPs to “educate” users on copyright infringement <a href="https://torrentfreak.com/just-5-uk-internet-users-hardcore-pirates-160705/">have very little impact on users’ behavior</a>. Only 11% of users who’d admitted to unauthorized access said that they’d be deterred if they received letters from their ISPs threatening to suspend their accounts.&#13;</p>
<h3>More Copyright Is Not the Solution</h3>
<p>If online infringement is on the decline, then why is it invoked so often when the entertainment industry tries to expand copyright? In the past few months alone:&#13;</p>
<ul><li>The Motion Picture Association of America has <a href="https://www.eff.org/deeplinks/2016/02/mpaa-may-donuts-they-shouldnt-be-copyright-police">pressured domain name registries to agree to block websites</a> over alleged copyright infringement.</li>
<li>Lobbyists have proposed that the government institute a <a href="https://www.eff.org/deeplinks/2016/01/notice-and-stay-down-really-filter-everything">mandatory filtering regime</a> which would require user-generated content platforms to build <a href="https://www.eff.org/deeplinks/2016/02/content-id-and-rise-machines">Content ID</a>-style copyright bots.</li>
<li>The cable industry has attempted to stop the FCC from bringing competition to the set-top box market, <a href="https://www.eff.org/deeplinks/2016/05/copyright-doesnt-mean-unlimited-control">suggesting that copyright should let it control how people consume its content</a>.</li>
<li>Both Chile and Columbia have considered creating a new <a href="https://www.eff.org/deeplinks/2016/06/chilean-proposal-unwaivable-payments-authors-spreads-colombia">copyright-adjacent right of remuneration</a> that creators of video works would not be able to waive, even if they wanted to.</li>
</ul><p>And on it goes. Again and again, large content owners seem to think that the only way to fight unauthorized media consumption is to expand copyright. But more copyright won’t change users’ behavior. What it will do is chill innovation and free expression online. The way to bring in more paying customers isn’t to write new law; it’s to build a better product and get it to more customers at the right price.</p>
</div></div></div>Wed, 20 Jul 2016 21:39:25 +000092404 at https://www.eff.orgCommentaryFair UseFile SharingThe "Six Strikes" Copyright Surveillance MachineElliot HarmonWhat If Elsevier and Researchers Quit Playing Hide-and-Seek?https://www.eff.org/ar/deeplinks/2015/12/what-if-elsevier-and-researchers-quit-playing-hide-and-seek
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><h3>Copyright Lawsuits Won’t Stop People from Sharing Research</h3>
<p>In principle, everyone in the world should have access to the same body of knowledge. The UN Declaration of Human Rights says that <a href="http://www.un.org/en/universal-declaration-human-rights/index.html">everyone deserves the right</a> “to share in scientific advancement and its benefits.”&#13;</p>
<p>The reality is a bit messier. Institutional subscriptions to academic databases don’t cover every article someone would ever need. When scholars and professors find a reference to an article that they don’t have access to, they’ll often turn to less orthodox approaches: asking for the paper on Twitter or Facebook, emailing a friend at another institution, or even asking the author directly. For a lot of people, research amounts to a patchwork of sources culled together through authorized and unauthorized methods.&#13;</p>
<p>Publishing giant Elsevier <a href="https://boingboing.net/2015/12/01/scholars-and-activists-stand-i.html">recently made headlines</a> with its attempts to curb sharing of its papers. When Elsevier persuaded a court to order two websites taken down, they quickly reemerged at different URLs. The story demonstrates what anyone who uses the Internet already knows: copyright lawsuits only temporarily slow sharing. They don’t prevent it.&#13;</p>
<h3>The Rise and Fall and Rise of Sci-Hub</h3>
<p>In 2011, researcher Alexandra Elbakyan developed a method for bypassing paywalls to get to the research she needed. “When I was working on my research project, I found out that all research papers I needed for work were paywalled,” <a href="https://torrentfreak.com/sci-hub-tears-down-academias-illegal-copyright-paywalls-150627/">she said in an interview</a>. “I was a student in Kazakhstan at the time and our university was not subscribed to anything.”&#13;</p>
<p>Elbakyan found a way to spoof universities’ IP addresses, getting access to the same resources that students and faculty at those universities can see. When word of Elbakyan’s hack got around, friends and colleagues began to ask her to find papers for them. She realized that helping everyone individually wasn’t sustainable, so she built a website—Sci-Hub—that anyone could use to retrieve paywalled research.&#13;</p>
<p>Needless to say, Sci-Hub got the attention of the academic publishing world. In June, Elsevier filed a copyright infringement lawsuit against both Sci-Hub and LibGen (Library Genesis), another repository for unauthorized sharing of research papers. On October 30, <a href="https://www.techdirt.com/articles/20151207/07204733011/elsevier-granted-injunction-against-research-paper-pirate-site-which-immediately-moves-to-new-domain-to-dodge-it.shtml">a New York judge granted an injunction</a> against several web domains owned by Sci-Hub and LibGen.&#13;</p>
<p>Sci-Hub and LibGen have now <a href="https://torrentfreak.com/sci-hub-and-libgen-resurface-after-being-shut-down-151121/">moved to new domains</a>, and Sci-Hub has set up a .onion address; this allows users to access the service anonymously through <a href="https://www.torproject.org/">Tor</a>. How quickly the sites have gotten back on their feet after the injunction underscores that these services can’t really be stopped. Elsevier can’t kill unauthorized sharing of its papers; at best, it can only make sharing incrementally less convenient.&#13;</p>
<h3>Sharing Doesn’t Fix Closed</h3>
<p>On the other hand, services like Sci-Hub only make sharing incrementally <i>more</i> convenient. They don’t fix the problems inherent to a closed publishing model.&#13;</p>
<p>A few months ago, <a href="https://www.eff.org/deeplinks/2015/10/open-access-human-rights-issue">the hashtag #icanhazpdf got a lot of media attention</a>. The idea behind #icanhazpdf is simple: when someone finds a reference to an article they can’t access, they ask for it on Twitter. When someone with access sends over the PDF, the original poster deletes their tweet.&#13;</p>
<p>#icanhazpdf and Sci-Hub might be new, but the kind of informal sharing they represent has been around for as long as the Internet has existed. They haven’t changed the systemic disparities in who has access to research (it’s worth mentioning here that most of the traffic to LibGen and Sci-Hub comes from <a href="https://theconversation.com/elsevier-acts-against-research-article-pirate-sites-and-claims-irreparable-harm-43293">economically disadvantaged countries</a>).&#13;</p>
<p>People without institutional access to academic databases probably have fewer friends with access—therefore, fewer people they can reach out to for help. Many people aren’t aware of sites like Sci-Hub, or aren’t willing to use them.&#13;</p>
<p>Reaching out to an author directly can be a mixed bag, too: many researchers are <a href="https://torrentfreak.com/copyright-scares-university-researchers-away-from-sharing-their-findings-150920/">afraid to share their own work</a> thanks to the prohibitive contracts they sign when they publish. What’s more, relying on the authors themselves makes their own personal prejudices a <a href="https://www.insidehighered.com/news/2014/04/24/study-finds-faculty-members-are-more-likely-respond-white-males-others">gating factor</a>. Sadly, informal sharing of research isn’t immune to the inequalities that plague traditional publishing.&#13;</p>
<h3>We Can Help Publishers Change</h3>
<p>As long as the publishing industry relies on closed models, it will need to spend more and more time and legal fees fighting sharing, locked in a perpetual game of hide-and-seek. What if Elsevier and other large publishers poured less time and money into fighting each new research-sharing website, and more into addressing the disparities that prompt those workarounds in the first place?&#13;</p>
<p>There’s a bill in Congress called FASTR (<a href="https://www.congress.gov/bill/114th-congress/senate-bill/779">S.779</a>, <a href="https://www.congress.gov/bill/114th-congress/house-bill/1477">H.R.1477</a>) that would require that federally funded research be shared openly. FASTR has strong supporters in both parties, but in order for Congress to move forward with the bill, it needs to hear that open access matters to the public.&#13;</p>
<p>FASTR—and reforms like it—will lead publishers to migrate to business models that don’t rely on hiding research from the public. Tell your lawmakers that publicly funded research should be publicly shared.&#13;</p>
<p class="eff_digital_voices-take_action"><a href="https://act.eff.org/action/secure-open-access-to-taxpayer-funded-research"><img src="/sites/all/modules/custom/eff_digital_voices/plugins/take_action/images/button.png" alt="Take Action" title="Take Action" class="eff_digital_voices-take_action" /><strong>Tell your lawmakers that open access is important to you.</strong></a></p>
</div></div></div>Wed, 16 Dec 2015 23:26:40 +000089795 at https://www.eff.orgCommentaryFair UseFile SharingCreativity & InnovationOpen AccessElliot HarmonAn Open Internet Is Essential to a Free Internet: Why Net Neutrality Should Matter To Everyonehttps://www.eff.org/ar/deeplinks/2014/09/open-internet-essential-free-internet-why-net-neutrality-should-matter-everyone
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><a href="https://www.dearfcc.org/"><img class="image-right" src="/files/2014/05/15/neutrality-3.png" alt="" height="214" width="287" /></a>Right now the FCC is <a href="https://www.eff.org/guide-to-the-fcc-net-neutrality-proposal">considering a set of rules</a> that would allow Internet providers to offer faster access to some websites that can afford to pay. We need to stop them.&#13;</p>
<p>Let’s start with the obvious: The Internet is how we communicate and how we work, learn new things, and find out where to go and how to get there. It keeps us connected to those we love and informed of political events that affect our everyday lives.&#13;</p>
<p>At EFF, we have fought for almost 25 years to protect a free and open Internet. We depend on the Internet for everything we do, from our efforts to reform <a href="https://www.eff.org/copyrightweek">broken copyright laws</a>, to our ongoing battles to end <a href="nsa-spying">the NSA’s illegal mass surveillance</a>. More fundamentally, we know that the open Internet makes possible not just our activism, but the work of many others around the world.&#13;</p>
<p>That’s why we’re fighting tooth and nail to defend a concept known as net neutrality. Net neutrality means that Internet providers should <a href="https://www.eff.org/issues/net-neutrality">treat all data that travels over their networks equally</a>, rather than slowing down or even blocking access to sites of their choosing.&#13;</p>
<p>Good net neutrality rules would forbid Internet providers from discriminating against sites that cannot afford to pay a toll for preferential treatment, or sites that are critical of Internet providers or undermine their business models.&#13;</p>
<p>That threat is real. In 2005, for example, Canadian ISP Telus , <a href="http://www.cbc.ca/news/canada/telus-cuts-subscriber-access-to-pro-union-website-1.531166">blocked access</a> to a website that was used to plan actions by the Telecommunications Workers Union during a strike. And in 2007, <a href="http://arstechnica.com/uncategorized/2007/08/pearl-jam-censored-by-att-calls-for-a-neutral-net/">AT&amp;T deleted Eddy Vedder’s criticism of George W. Bush</a> during a webcasted Pearl Jam concert. Although AT&amp;T was technically acting in the capacity of a content provider, content providers and Internet providers have merged dramatically in the past few years, resulting in the lines becoming uncomfortably blurred. This sort of censorship threatens both innovation and free speech.&#13;</p>
<h3>Fighting for the Users</h3>
<p>Right now the entire architecture of the Internet is under threat. The FCC is about to <a href="https://www.fcc.gov/document/fcc-extends-open-internet-reply-comment-period-until-sept-15">make a decision</a> that will determine whether or not Internet providers will be allowed to offer faster access to some websites, while <a href="https://www.eff.org/deeplinks/2014/09/reddit-pornhub-websites-slow-down-net-neutrality-september-10">leaving others in the slow-lane</a>. &#13;</p>
<p>We’re <a href="https://www.eff.org/deeplinks/2014/07/deep-dive-defense-neutral-net">calling on the FCC</a> to do the right thing and not allow for rampant discrimination online. Specifically, we’re <a href="https://www.eff.org/deeplinks/2014/06/fcc-and-net-neutrality-way-forward">telling the FCC</a> that the Internet needs to be treated as part of our essential communications infrastructure, and that means <a href="https://www.eff.org/deeplinks/2014/07/forbearance-what-it-why-its-essential-net-neutrality-0">regulating it as such</a> to protect net neutrality.&#13;</p>
<p>Net neutrality is central to all of our efforts to protect and defend digital rights. Let’s go through a handful of EFF’s issues to explain how.&#13;</p>
<h3>The Risk to Privacy Conscious Services</h3>
<p>Without net neutrality, Internet providers may interfere with access to privacy protecting services and websites or encrypted traffic. We have the right to encrypt our communications because <a href="https://en.necessaryandproportionate.org/take-action/ORG">privacy is a human right</a> and it’s protected in the US Constitution. Yet, in the past we saw <a href="https://www.eff.org/wp/packet-forgery-isps-report-comcast-affair">Comcast blocking encrypted traffic</a> to BitTorrent. And in Canada, the broadband provider <a href="https://en.wikipedia.org/wiki/Rogers_Hi-Speed_Internet#Throttling">Rogers Hi-Speed Internet blocked and throttled</a> <i>all </i>encrypted file transfers over their network for <i>five</i> years.&#13;</p>
<p>Use of encrypted browsing prevents Internet providers from <a href="https://www.eff.org/deeplinks/2011/08/update-paxfire-and-search-redirection">injecting ads</a> into the pages you view and prevents them from logging your activities to sell to marketers, so they have an economic incentive to keep it easy to spy on you. Without net neutrality, there’s no telling what privacy-enabling tools will become unusable at the whim of Internet providers.&#13;</p>
<p>An increasing trend in privacy-conscious products is the move to technologies where sensitive data is self hosted, hosted by friends, or resides on an anonymous decentralized network instead of on the servers of a company that law enforcement can easily compel to turn over your data without telling you first.&#13;</p>
<p>But many ISPs have rules against people running "servers" at home, prohibiting people from making use of the upstream bandwidth they've paid for. If all bits were treated equally, then it wouldn’t matter whether the traffic originated with a server. In other words, if users pay for their bandwidth, then they should be able to use it however they want.&#13;</p>
<p>Without good net neutrality protections, we fear that privacy conscious services will be significantly affected, not only because small companies and free software communities most likely won’t be able to afford fast-lane access, but also because Internet providers may degrade such services for their own business reasons.&#13;</p>
<h3>Copyright Policing from Internet Providers</h3>
<p>Copyright is routinely cited as an excuse for corporate and government censorship of the Internet. When <a href="https://www.eff.org/wp/packet-forgery-isps-report-comcast-affair">Comcast blocked all encrypted traffic to BitTorrent</a> back in 2007, <a href="https://www.eff.org/wp/packet-forgery-isps-report-comcast-affair">they claimed</a> it was because BitTorrent was used for copyright infringement – never mind the many non-infringing uses that were also blocked. Good net neutrality rules would prevent that kind of policing from ISPs, as well as unilateral decisions by ISPs to degrade or block access to sites they allege are infringing or promote infringement.&#13;</p>
<p>This is a particular concern as more Internet providers expand into content production and distribution. Network discrimination could be used to herd users towards services the ISPs offer, like Verizon’s RedBox, rather than their competitors. Again, good net neutrality rules would not allow Internet providers to direct users to one site over another by speeding up or slowing down online traffic.&#13;</p>
<p>Copyright has caused problems for net neutrality before. We’ve seen <a href="https://www.eff.org/files/filenode/nn/EFFNNcomments.pdf">bad net neutrality rules</a> with giant holes carved out for ISPs to discriminate based on copyright infringement, such as the 2010 Open Internet order. Carve-outs for copyright are antithetical to the principles of net neutrality, and we’re calling on the FCC to create application agnostic, bright line anti-discrimination rules.&#13;</p>
<h3>Access to Information</h3>
<p>Transparency can be a powerful tool. One of our <a href="https://www.eff.org/issues/transparency">core visions</a> for a more transparent political environment is for government data, <a href="https://www.eff.org/deeplinks/2014/09/right-know-pacer-mess-and-how-clean-it">court documents</a> and <a href="https://www.eff.org/deeplinks/2014/08/what-you-need-know-about-fisa-court-and-how-it-needs-change">interpretations of the law</a> to be readily accessible online. Access to the law shouldn’t be slower than, say, viewing an entertainment website. But without strong net neutrality rules, Internet providers are likely to offer faster access to some websites while impeding our access to information.&#13;</p>
<h3>The Future of Our Internet</h3>
<p>The open Internet is central to projects of social justice and political change. Our democracy cannot afford network discrimination. Money and the whims of Internet providers shouldn’t determine who is able to speak to whom and at what rate.&#13;</p>
<p>Join us as we call on the FCC to do the right thing: treat all traffic that travels over the Internet equally. The Internet is our future. It’s how we communicate, innovate, and organize to better our world. <a href="dearfcc.org">Take action now</a>, before it’s too late.&#13;</p>
<p>Visit <a href="https://DearFCC.org">DearFCC.org</a> to submit your comments to the FCC before the September 15<sup>th</sup> deadline. It’s our Internet, and we’re going to fight to protect it.&#13;</p>
<p></p><center><a href="https://www.dearfcc.org"><img src="/files/2014/09/09/banner.gif" alt="" height="90" width="434" /></a></center>
</div></div></div>Wed, 10 Sep 2014 20:31:43 +000082173 at https://www.eff.orgFile SharingFree SpeechCreativity & InnovationNet NeutralitySurveillance and Human RightsNSA SpyingApril GlaserHollywood, Take Note: New Website Shows Movie Watchers Can't Get What They Wanthttps://www.eff.org/ar/deeplinks/2013/10/hollywood-take-note-new-website-shows-movie-watchers-cant-get-what-they-want
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The content lobby's narrative about the Internet's impact on the creative industry has grown all too familiar. According to this tiresome story, Hollywood is doing everything it can to prevent unauthorized downloading, but people—enabled by peer-to-peer technologies, “rogue” websites, search engines, or whatever the bogeyman of the moment is—keep doing it anyway. As a result, say groups like the Motion Picture Association of America (MPAA), creators are deprived of their hard-earned and well-deserved profits and have little incentive to keep creating.&#13;</p>
<p>There's a lot that's wrong with this story (like the assumption that most copyright royalties actual end up in the pockets of the artists). But one of the most pernicious aspects is the idea that Hollywood is actually making a sincere effort to meet user demand. &#13;</p>
<div class="align-left">
<p></p><div class="caption caption-center"><div class="caption-width-container"><div class="caption-inner"><img src="/files/2013/10/17/piracydataorg.png" alt="" height="159" width="303" /><p class="caption-text">Screengrab of PiracyData.org</p></div></div></div>&#13;
</div>
<p>That's why we're happy to see a new website called <a href="http://piracydata.org/">PiracyData.org</a>, is helping to tell another crucial part of the story. As the site shows, the studios aren't keeping up with the markets that new technologies enable—which is why, in many cases, the most popular films are not even available through preferred legal channels.&#13;</p>
<p>The site lists the <a href="http://torrentfreak.com/category/dvdrip/">top 10 most pirated films</a> on BitTorrent and checks whether those films are available to stream, rent, or purchase digitally. In a simple chart, it shows how few options users have for accessing these in-demand movies. Since the site began recording three weeks ago, only 20% have been available for digital rental and none have been available for streaming. This site goes to highlight the underlying problem of unauthorized file sharing: the high demand for legal access to films is not being met when we clearly already have the technology to enable this experience.&#13;</p>
<p>Of course, this data confirms the long-held suspicions of many who object to Hollywood's demand for ever more draconian copyright enforcement efforts. Instead of focusing on piracy and <a target="_blank" href="https://www.opensecrets.org/lobby/clientsum.php?id=D000027729&amp;year=2013">spending millions on lobbying</a> for those policy changes, the content industry should be investing its resources into creating better and more accessible platforms for users. Unfortunately, Hollywood refuses to acknowledge that reality. We've seen the industry demonstrate that with its continuing efforts to push legislation that runs counter to the public interest, and its stubborn refusal to offer content in the formats people have been shown to prefer.&#13;</p>
<p>If the studios were to invest their considerable resources in meeting the market demand, it could lead to a very profitable digital marketplace. We said this before, and we'll keep saying it until it sinks in: the hard-working men and women in the entertainment industry should stand up and tell their leaders to either <a href="https://www.eff.org/deeplinks/2012/02/dear-hollywood-open-letter-hardworking-men-and-women-entertainment-industries">embrace the age of the Internet or get out of the way</a> so that new, forward-thinking industry leaders can take their place.</p>
</div></div></div>Fri, 18 Oct 2013 15:57:10 +000076652 at https://www.eff.orgFair UseFile SharingMaira SuttonParker HigginsKorean Lawmakers and Human Rights Experts Challenge Three Strikes Lawhttps://www.eff.org/ar/deeplinks/2013/03/korea-stands-against-three-strikes
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In July 2009, South Korea became the first country to introduce a <a target="_blank" href="https://globalchokepoints.org/countries/south-korea">graduated response or "three strikes" law</a>. The statute allows the Minister of Culture or the Korean Copyright Commission to tell ISPs and Korean online service providers to suspend the accounts of repeated infringers and block or delete infringing content online. There is no judicial process, no court of appeal, and no opportunity to challenge the accusers.&#13;</p>
<p>The entertainment industry has repeatedly pointed to South Korea as a <a href="https://musicandcopyright.wordpress.com/2011/03/10/south-korea-continues-to-develop-as-a-model-for-future-recorded-music-markets/">model</a> for a controlled Internet that should be <a href="http://www.barrysookman.com/2010/01/20/graduated-response-and-copyright-an-idea-that-is-right-for-the-times/"> adopted everywhere</a> else. In the wake of South Korea's implementation, graduated response laws have been passed in France and the United Kingdom, and ISPs in the United States have <a href="https://www.eff.org/deeplinks/2013/02/six-strikes-copyright-alert-system-faq">voluntarily accepted</a> a similar scheme.&#13;</p>
<p>But back in Korea, the entertainment industry's experiment in Internet enforcement has been a failure. Instead of tackling a few "heavy uploaders" involved in large scale infringement, the law has spiraled out of control. It has now distributed nearly half a million takedown notices, and led to the closing down of 408 Korean Internet users' web accounts, most of which were online storage services. An investigation led by the Korean politician Choi Jae-Cheon showed that half of those suspended were involved in infringement of material that would cost less than 90 U.S. cents. And while the bill's backers claimed it would reduce piracy, detected <a href="http://english.yonhapnews.co.kr/national/2011/08/13/43/0302000000AEN20110813001100315F.HTML">infringement</a> has only increased as more and more users are subject to <a href="http://reformcopyright.opennet.or.kr/">suspensions, deletion, and blocked content</a>.&#13;</p>
<p>This Wednesday, Korea's National Human Rights Commission <a href="http://hurips.blogspot.kr/2013/03/national-human-rights-body-recommends.html">recommended</a> that the three strikes law be re-examined, given its unclear benefits, and its potential violation of the human rights <a href="https://www.un.org/en/documents/udhr/index.shtml#a19">to receive and impart information</a> and <a href="https://www.un.org/en/documents/udhr/index.shtml#a27">to participate in the cultural life</a> of the community.&#13;</p>
<p>Mr. Choi and twelve other members of the Korean National Assembly have taken the first step in that reform. Last week, <a href="http://advocacy.globalvoicesonline.org/2013/03/28/south-korean-politician-moves-to-repeal-biased-copyright-law/">they announced plans</a> to introduce <a href="http://opennet.or.kr/copyright-reform/bill-to-amend-copyright-act">a law</a> that would repeal three strikes, as well as ensure that ISPs have no need to pro-actively spy on their own users for signs of copyright infringement. Newly formed Korean digital rights group, OpenNet, along with is working hard to drum up political support for this initiative.&#13;</p>
<p>The rightsholders have reacted with alarm to the prospect of copyright reform in Korea, and have already begun heavy lobbying for the abandonment of Choi's initiative. They badly need Korea to maintain this law, even if it damages Korea's own economy and their citizen's civil liberties. It's not surprising that they have already been making frequent calls and meetings with Mr. Choi and other Korean politicians. If Korea rejects three strikes as a disaster, why should anyone else maintain its injustices?&#13;</p>
<p>Korean lawmakers need to stand firm. We, along with many other major international Internet rights groups have written to strongly support Mr. Choi's brave stand for his own citizens. His stand is based on thorough investigations of Korean Internet users' experience of this law. We hope that his group's reform will prevail, and that Korea will be freed of the dubious benefits and growing disadvantages of being the laboratory for this discredited experiment.&#13;</p>
<p>We stand with <a href="https://www.accessnow.org/">Access</a>, <a target="_blank" href="https://www.apc.org/">Association for Progressive Communications</a>, <a href="http://www.creativecommons.or.kr/xe/?mid=main">Creative Commons Korea</a>, <a href="http://demandprogress.org/">Demand Progress</a>, <a href="http://www.fightforthefuture.org/">Fight for the Future</a>, <a href="http://www.freepress.net/">Free Press</a>, <a target="_blank" href="http://www.fsf.org">Free Software Foundation</a>, <a href="http://advocacy.globalvoicesonline.org/">Global Voices Advocacy</a>, <a target="_blank" href="http://www.gn.apc.org">GreenNet</a>, <a target="_blank" href="http://www.jcafe.net/">Japan Computer Access for Empowerment (JCAFE)</a>, <a target="_blank" href="http://www.jca.apc.org/">Japan Computer Access Network (JCA-NET)</a>, <a target="_blank" href="http://www.labornet.org">LaborNet</a>, <a href="http://www.laquadrature.net/">La Quadrature du Net</a>, <a href="http://openmedia.ca/">OpenMedia</a>, <a href="http://www.derechosdigitales.org/">ONG Derechos Digitales</a>, and <a href="http://publicknowledge.org/">Public Knowledge</a> to support the repeal of the three strikes law in the Republic of Korea.&#13;</p>
<p>The letter we sent Korean lawmakers is below.&#13;</p>
<p>~&#13;</p>
<p><em>Dear Honorable Member of the National Assembly:</em>&#13;</p>
<p><em>Internet access is vital to people's livelihood, education, health, and engagement in social, cultural, and civic activities. However, recent copyright enforcement measures neglect the heavy implications of disconnecting and limiting users' online access.</em>&#13;</p>
<p><em>Graduated response, or so-called "three-strikes" policies punish users following repeated accusations of copyright infringement. Such regulations frequently have minimal or no judicial involvement, depriving their victims the right to due process, and subsequently free expression, freedom of association, and innovation — all of which are fundamental to social and economic progress. Internet restriction policies create a legal imbalance that gives content owners unfair and disproportionate enforcement rights at the expense of Internet users' rights.</em>&#13;</p>
<p><em>The Republic of Korea was the first country to implement a three-strikes policy and its harmful impact on Internet users is already apparent. In the past three and a half years since its enactment, 468,446 take-down notices have been sent to users, and it has shut down 408 website accounts. Under its current copyright law, an administrative body has the power to disconnect Internet service without a court order. The chilling effect this has had for users is immeasurable, but its impact is already apparent. </em>&#13;</p>
<p><em>The Republic of Korea is at the forefront of technological development with one of the most Internet-connected populations in the world. Therefore it is especially crucial that Korean lawmakers show their leadership in opposing online censorship and to position themselves as strong defenders of digital civil liberties.</em>&#13;</p>
<p><em>We are Internet freedom and free speech groups dedicated to the rights of all people to access cultural and educational resources, to enjoy a free and open Internet, and to benefit from open innovation. We jointly sign this letter in support of National Assembly Member Choi Jae Cheon's proposed bill to completely remove the three-strikes and ISP monitoring and content filtering provisions from the Korean Copyright Act.</em>&#13;</p>
<p><em>We are happy to continue the conversation with the Republic of Korea's National Assembly Member, and provide you with information, evidence, and reports from the rest of the world in support of this initiative.</em></p>
</div></div></div>Sat, 30 Mar 2013 01:13:16 +000073709 at https://www.eff.orgCall To ActionFree SpeechFair UseFile SharingThe "Six Strikes" Copyright Surveillance MachineInternationalDanny O&#039;BrienMaira SuttonU.S. Copyright Surveillance Machine About To Be Switched On, Promises of Transparency Already Brokenhttps://www.eff.org/ar/deeplinks/2012/11/us-copyright-surveillance-machine-about-be-switched-on
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><b><span></span></b><span>The "<a title="Copyright Alert System" href="http://www.copyrightinformation.org/alerts">Copyright Alert System</a>" – an elaborate combination of surveillance, warnings, punishments, and "education" directed at</span> customers of most major U.S. Internet service providers – is poised to launch in the next few weeks, as has been widely reported. The problems with it are legion.<span> </span>Big media companies are launching a massive peer-to-peer surveillance scheme to snoop on subscribers. Based on the results of that snooping, ISPs will be serving as Hollywood’s private enforcement arm, without the checks and balances <i>public</i> enforcement requires. Once a subscriber is accused, she <span></span>must prove her innocence, without many of the legal defenses she’d have in a courtroom. <span>The "educational" materials posted for subscribers <a title="CCI's &quot;Facts About Copyright Infringement&quot;" href="http://www.copyrightinformation.org/facts">thus far</a> look more like propaganda, slanted towards major entertainment companies' view of copyright. </span><span class="MsoCommentReference"><span><span></span></span></span><span>And all of this was set up with the encouragement and endorsement of the U.S. government.</span>&#13;</p>
<p><span>One of the mechanisms that was supposed to ensure some degree of fairness was independent auditing of the P2P surveillance methods used to identify alleged infringers, and of the ISPs' procedures for matching Internet Protocol addresses to actual humans. But last month, the group set up to oversee the system - the Center for Copyright Information - <a title=" MOVING TO IMPLEMENTATION" href="http://www.copyrightinformation.org/node/709">revealed</a> that its "independent" reviewer was <a title="Stroz Friedberg" href="http://www.strozfriedberg.com/">Stroz Friedberg</a>, a lobbying firm that represented the <a title="Recording Industry Association of America" href="http://www.riaa.org">Recording Industry Association of America</a> in the halls of</span> Congress from 2004 to 2009. Needless to say, RIAA's former lobbying firm is hardly an "independent" reviewer. And CCI could have discovered the relationship between Stroz and the RIAA – it’s on the <a title=" Lobbying Spending - Stroz Friedberg, 2008" href="http://www.opensecrets.org/lobby/firmsum.php?id=F26167&amp;year=2008">public record</a>, in reports that lobbyists must file with Congress every year.&#13;</p>
<p class="MsoNormal"><span>It gets worse. In response to criticism of this obvious conflict of interest, CCI acknowledged that "[r]ecent reports that a former employee of Stroz Friedberg lobbied several years ago on behalf of RIAA on matters unrelated to CCI have raised questions" about the group's impartiality. In the name of “maintaining transparency,” CCI released the <a title="Stroz Friedberg Report on the Copyright Alert System" href="http://www.copyrightinformation.org/node/713">Stroz report</a> to the public last week.</span><span></span></p>
<p class="MsoNormal"><span>But it turns out the CCI has a funny definition of “transparency.” Nearly every significant detail of how the massive P2P monitoring scheme will work is redacted out of the public version. What remains is this: CCI hired a company called MarkMonitor, which will join BitTorrent networks and collect the Internet Protocol addresses of computers that are sharing certain movies and songs (MPAA and RIAA members supply the lists). Their software, described only as "collection mechanisms" and "scanning systems" in the public version, compares the beginning, end, and some of the middle of the file against a reference version, and, if they match, emails the ISP with the IP address of the accused file-sharer. The ISP then sends an escalating series of warnings and punishments to the subscriber, including mandatory "copyright education" and potential bandwidth throttling or blocking of popular websites.</span></p>
<p class="MsoNormal"><span>There's a lot we simply can't tell from this heavily redacted report. Most importantly, we have no way of knowing if legal, non-infringing uses of copyrighted movies and music will be flagged as infringing, leading to escalating "mitigation measures" for law-abiding Internet subscribers. We don't know what, if any, protocols other than BitTorrent the system will be snooping on. And we don't know how, or how accurately, the ISPs match IP addresses to the names of actual human beings. That process, says CCI, was described in another Stroz Friedberg report that hasn't been released.</span></p>
<p class="MsoNormal"><span>CCI and its backers have made every effort to portray the system as <a title="Let's Press Reset" href="https://www.eff.org/deeplinks/2012/04/graduate-response-program-lets-press-reset-button-backroom-deal">fair and balanced</a>. But subscribers are rightly wary of a copyright surveillance machine that dispenses warnings and punishments based on a secret process.<span> </span>Hopefully CCI will go to greater lengths to find an “independent” reviewer next time – but we’re not optimistic.</span></p>
<p class="MsoNormal"><span>According to CCI, this fatally flawed system, created via a backroom deal with <a title="What If Users Had Been At The Negotiating Table?" href="https://www.eff.org/deeplinks/2011/07/graduated-response-deal-what-if-users-had-been">no subscriber input</a>,</span><span> will start spying on U.S. subscribers' Internet usage, and sending out warnings and punishments, before the end of 2012. <span> </span>In light of what we already know, the better course would be to</span><span> <a title="Let's Press Reset" href="https://www.eff.org/deeplinks/2012/04/graduate-response-program-lets-press-reset-button-backroom-deal">press reset</a>.<br /></span><span><span></span></span><span></span></p>
</div></div></div>Thu, 15 Nov 2012 18:54:15 +000072296 at https://www.eff.orgCommentaryFair UseFile SharingMitch StoltzAppeals Court Upholds $9,250 Per Song Penalty in Filesharing Case, Says Constitution Doesn't Limit Penaltieshttps://www.eff.org/ar/deeplinks/2012/09/appeals-court-upholds-penalty-in-filesharing-case
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal"><span>The damages provisions of copyright law - up to $150,000 per infringed work without any proof of harm - are crazy. And according to the federal appeals court in Minnesota, the Constitution does not restore sanity. This week, the U.S. Court of Appeals for the Eighth Circuit <a title="Capitol v. Thomas-Rasset 8th Circuit Opinion" href="https://www.eff.org/document/thomas-rasset-8th-circuit-opinion">upheld</a> the <a title="Mistrial in Capitol v. Thomas" href="https://www.eff.org/press/mentions/2008/11/4-0">original jury verdict</a> against Jammie Thomas-Rasset: a $222,000 penalty for sharing 24 songs on a peer-to-peer network. That's $9,250 per song (for songs that sell for about a dollar at retail). Frighteningly, the court suggested that statutory damages awarded by a judge or jury don't need to have ANY connection to the harm actually suffered by a copyright owner.</span></p>
<p>The case of <a title="Capitol v. Thomas-Rasset" href="https://www.eff.org/cases/capitol-v-thomas">Capitol Records v. Thomas-Rasset</a> has a long, convoluted history, including three different jury verdicts: one for $220,000, another for a staggering $1,920,000, and still another for $1.5 million. Last year, a federal judge <a title="Judge Slashed P2P Award Again" href="https://www.eff.org/deeplinks/2011/07/judge-slashes-p2p-award-again-capitol-v-thomas">reduced</a> the last award to $54,000, calling the jury's verdict "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." The record companies did not agree, and appealed the judge's ruling to the Eighth Circuit. EFF filed an <a title="EFF Amicus Brief to 8th Circuit in Capitol v. Thomas-Rasset" href="https://www.eff.org/node/69683">amicus brief</a>, arguing along with Ms. Thomas-Rasset that copyright damages should be predictable and proportionate to the harm.&#13;</p>
<p>The court rejected the argument that statutory damages violate the Due Process Clause of the Constitution. In similar areas - like punitive damages in tort cases - the Supreme Court has said that grossly large jury verdicts can be unconstitutional. The Supreme Court told lower courts to focus on three factors: how reprehensible the defendant's conduct was, the harm actually suffered by the plaintiff, and the damages awarded in similar cases.<a class="see-footnote" id="footnoteref1_4c5ubzj" title="State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996)." href="#footnote1_4c5ubzj">1</a> Damage awards that are far higher than needed to compensate the plaintiff, punish the defendant, and deter future violations can violate the Constitution.&#13;</p>
<p>The Eighth Circuit said that this standard doesn't apply to copyright cases, despite the obvious parallels to personal injury law. The court said that because the law confines copyright damages to a range, people are on notice of what they might be liable for, and can adjust their behavior accordingly. In other words, anyone wanting to create a new product or service that touches copyrighted works needs to be prepared to pay millions or billions in damages if a court case goes against them. To say the least, this will discourage innovation and investment.&#13;</p>
<p>Worse yet, the court said that although the law "allows courts and juries to calibrate the award based on the nature of the violation," it doesn't require that statutory damages be proportional to any actual harm suffered by the copyright owner. The 24 songs Ms. Thomas-Rasset copied were worth far less than $220,000 to the record company plaintiffs. Since this case is one of only two music-sharing cases against individuals to reach trial, out of the thousands filed by the record labels, the labels obviously wanted to set a powerful example to deter others from sharing music. The Supreme Court has ruled that the Constitution limits how far judges and juries can go in using a single civil defendant as a cautionary example. The Eighth Circuit seems to be saying that when the subject is copyright infringement, the Constitution's usual protections for civil defendants don't apply.&#13;</p>
<p>The court's decision could have been worse. The record companies tried to get a ruling that simply making a song available for download on a peer-to-peer network without authorization is a copyright violation, even if no one downloads. The district judge <a title="Order Granting New Trial in Capitol v. Thomas" href="https://www.eff.org/node/55810">disagreed</a>, and the Eighth Circuit left that question open, although it did rule that Ms. Thomas-Rasset could be ordered not to make the record companies' songs available for downloading.&#13;</p>
<p>Although it's only binding in several states, yesterday's decision is disappointing. We hope that other courts of appeals don't exempt copyright law from the Constitution's protection against arbitrary and shockingly large civil penalties, and that Congress reconsiders the size of those penalties soon.</p>
<ul class="footnotes"><li class="footnote" id="footnote1_4c5ubzj"><a class="footnote-label" href="#footnoteref1_4c5ubzj">1.</a> State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996).</li>
</ul></div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/capitol-v-thomas">Capitol v. Thomas</a></div></div></div>Thu, 13 Sep 2012 18:33:47 +000071830 at https://www.eff.orgLegal AnalysisNews UpdateFile SharingMichael BarclayMitch StoltzRIP MCA: A Tribute To Paul’s Boutique and Music Samplinghttps://www.eff.org/ar/deeplinks/2012/05/rip-mca-tribute-pauls-boutique-and-music-sampling
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Today’s <a href="http://www.rollingstone.com/music/news/beastie-boys-co-founder-adam-yauch-dead-at-48-20120504">sad news</a> of the passing of Adam Yauch, the Beastie Boy’s MCA, caused us to take a moment to reflect on the impact that the Beastie Boys, and their seminal record <a href="http://pitchfork.com/reviews/albums/12671-pauls-boutique/">Paul’s Boutique</a>, had on <a href="https://www.eff.org/pages/rip-mix-make-tell-copyright-office-allow-dvd-and-web-video-remixing">remix culture</a>. </p>
<p class="MsoNormal">Released in 1989, Paul’s Boutique reportedly contains somewhere between 100 and 300 samples. In fact, one of the engineers who worked on the record estimated that “95% of the sounds” on Paul’s Boutique came from samples. Paul’s Boutique went on to garner both critical acclaim and commercial success, and it’s no wonder. Along with records by De La Soul and Public Enemy, it broke new ground in remixing all kinds of samples and laid the groundwork for many of today’s popular artists, such as Girl Talk.</p>
<p class="MsoNormal">We think it’s pretty clear that the samples the Beastie Boys used in Paul’s Boutique and that Girl Talk now uses in his records are classic examples of fair use. Unfortunately, many artists these days are nonetheless under pressure to pay licensing fees for similar uses. Despite the fact that most cases rightfully find that sampling is not copyright infringement, the mere threat of a lawsuit (and the specter of <a href="https://www.eff.org/deeplinks/2010/11/thomas-rasset-damage-award-strange-unpredictable">statutory damages</a>) is enough to intimidate musicians and labels alike. This cottage market of sample licensing stands in the way of creating the next Paul's Boutique <span>–</span> a sad comment on MCA's legacy. </p>
<p class="MsoNormal"></p>
<p class="MsoNormal">The time to come up with a new, effective licensing scheme is long overdue. Young artists should be encouraged to remix and create in all the exciting new ways that technology allows, not sidelined by expensive licensing battles. Solving this problem would go a long way in that direction and be a fitting tribute to MCA, the Beastie Boys, and the fantastic remix culture they helped foster.</p>
</div></div></div>Fri, 04 May 2012 23:08:09 +000070626 at https://www.eff.orgFair UseFile SharingJulie SamuelsCourt Orders Megaupload Parties to Come Up with a Planhttps://www.eff.org/ar/deeplinks/2012/04/court-orders-megaupload-parties-come-plan
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>On Friday, <a href="https://www.eff.org/deeplinks/2012/04/megaupload-goes-court-primer">EFF went to court</a> to argue that innocent Megaupload <a href="https://www.eff.org/press/releases/megaupload-user-asks-court-return-his-video-files">customers like Kyle Goodwin</a> should be able to get their lost files back. We were particularly concerned because the government, which had originally seized the files and still apparently holds all of Megaupload's financial assets, had argued that it had no obligation to make sure the files of innocent Megaupload users were returned and, in fact, <a href="https://www.eff.org/press/releases/megauploads-innocent-users-deserve-their-data-back">believed that they could be destroyed</a>.&#13;</p>
<p class="MsoNormal">The good news is that the court ordered all the parties – Megaupload, EFF, Carpathia (the service provider), the MPAA, and the government – to work together to devise a plan that protects everyone’s interests. The court plainly did not adopt the government's troubling view and ultimately everyone else in the hearing, including the MPAA, seemed to agree that destruction of the files would be problematic (you can read more about the hearing <a href="https://www.npr.org/blogs/therecord/2012/04/13/150535995/hearing-in-megaupload-case-to-determine-fate-of-users-data">here</a> and <a href="http://news.cnet.com/8301-1023_3-57413693-93/judge-wants-megaupload-user-data-preserved-for-now/">here</a>).</p>
<p class="MsoNormal">Of course, the situation poses some big logistical hurdles. First, there is a huge amount of data here – more than 25 petabytes. Second, the parties have diverging views on what should be done even if they agree on preserving the data. Who should store the data? Where should it be stored? And of course, who will pay for that storage and any plan to allow users to retrieve their files?</p>
<p class="MsoNormal">But we are encouraged by the seeming consensus that it’s only right that innocent users like Mr. Goodwin get their property back. We'll continue to do our best to make sure that happens.
</p>
</div></div></div>Mon, 16 Apr 2012 23:20:52 +000070448 at https://www.eff.orgLegal AnalysisCreativity & InnovationFair UseFile SharingJulie SamuelsMegaupload Goes to Court: A Primer https://www.eff.org/ar/deeplinks/2012/04/megaupload-goes-court-primer
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">Does the government have a responsibility to protect innocent third parties from collateral damage when it seizes their property in the course of prosecuting alleged copyright infringement? That is the question a federal district court will consider next week in the latest skirmish in the legal battle between the U.S. government and Megaupload.</p>
<p class="MsoNormal">When the government shut down Megaupload three months ago, it made it impossible for innocent third parties, like our client Kyle Goodwin, to access their data stored on that site. Others—like service provider Carpathia—have also voiced legitimate complaints about their property getting caught up in the government’s dragnet. But the government has tried to wash its hands of all responsibility, insisting it doesn’t control the property anymore and that the court has no authority to intervene. On April 13, a judge in the Eastern District of Virginia will hear arguments concerning what should happen with Mr. Goodwin’s data and Carpathia’s servers. Ahead of that hearing, here are some specifics on who will be there and what they will argue: </p>
<p class="MsoNormal"><b><span>Kyle Goodwin</span></b>: <a href="https://www.eff.org/press/releases/megaupload-user-asks-court-return-his-video-files">EFF represents Mr. Goodwin</a>, who owns a business called OhioSportsNet that covers local high school sporting events in sports-crazed Ohio. Mr. Goodwin and his producers used Megaupload to store and share video files of sports games; he also backed those files up on a personal hard drive. As luck would have it, that hard drive crashed a few days before the Megaupload shut down, leaving Mr. Goodwin with no access to the files he needs to run his business.
</p>
<p class="MsoNormal">Mr. Goodwin has <a href="https://www.eff.org/document/brief-interested-party-kyle-goodwin">asked the court</a> to set up a process that would allow him, and others in the same boat, to access his paid Megaupload account and get those files back.</p>
<p class="MsoNormal"><b><span>Carpathia</span></b>: Megaupload leased 1,103 servers from Carpathia, which contain approximately 25 petabytes of data (yes, 25 petabytes!). Carpathia still owns the servers and has not deleted the data, despite the government’s <a href="https://www.eff.org/files/Govt_Jan_27_Letter_0.pdf">claims</a> that Carpathia has no obligation to maintain that data (more on that below). From the outset, Carpathia has <a href="http://www.megaretrieval.com/">worked to preserve users’ data</a>, but it <a href="https://www.eff.org/files/Carpathia_mot_protective_order_0.pdf">claims</a> that “it does not own and cannot access the data” and, as such, is not able to return it to its rightful owners.</p>
<p class="MsoNormal">Because the government has frozen all of Megaupload’s funds, Carpathia has been stuck eating the costs of maintaining those servers — approximately $9,000 a day. Carpathia has asked the court to allow it to repurpose the servers after allowing a brief period of access, to require another party to take control of the servers and pay Carpathia for them, or to require the parties to pay Carpathia to continue maintenance.
</p>
<p class="MsoNormal">
</p><p> </p>
<p><b><span>MPAA</span></b>: The MPAA claims that its members “are certain to own the copyrights in a substantial percentage of the infringing files” stored on Carpathia’s servers. (Of course, the MPAA does not actually know what’s on those servers, but it and its cohorts never been afraid to <a href="http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml">shoot first and investigate later</a>). The MPAA has <a href="https://www.eff.org/files/MPAA_brief_iot_Carpathia_0.pdf">asked the court</a> to prohibit transfer of Carpathia’s servers to any third party.</p>
<p class="MsoNormal">Indeed, the organization insists that even a court-mandated transfer violates copyright law, since the servers presumably contain at least some copyrighted material. You read that right: the MPAA claims that a transfer of the <i>servers </i>to a third party (whether or not that third party could or would access the files on it) would constitute an <i>infringement</i> of the copyrighted material on those servers (without regard to whether the underlying use was licensed or otherwise a fair use).</p>
<p class="MsoNormal">The MPAA also expresses concern that Megaupload would obtain the servers and relaunch its service in a foreign jurisdiction. We think this unlikely. But, even so, the courts and the parties have the power to create a legal framework to ensure this doesn’t happen.</p>
<p class="MsoNormal">Finally, the MPAA <a href="http://www.wired.com/threatlevel/2012/03/mpaa-megaupload-user-litigatio/">claims</a> that it has no plans to sue individual Megaupload customers. Yet without filing a lawsuit and making a case that those customers actually infringed copyrights, the MPAA — or the government — has no right to keep their data from them. So while we are glad that the MPAA won’t be suing Megaupload customers, it is still outrageous that it wants to prevent those customers from accessing their property without due process.</p>
<p class="MsoNormal"><b><span>Megaupload</span></b>: Megaupload has not filed a substantive brief yet, but we know that its attempts to work with the government to preserve the data on Carpathia’s servers have not been successful.
</p>
<p class="MsoNormal"><b><span>The Government</span></b>: We had hoped the government would work with Mr. Goodwin, Carpathia, and the other parties to ensure that the innocent folks swept up in this mess were made whole again. Unfortunately, the government is doing its very best to avoid taking any responsibility in the matter. In its <a href="https://www.eff.org/files/Govt_brief_irt_Carpathia_0.pdf">brief</a>, the government argued that it has no obligation to help preserve the data on Carpathia’s servers. Even more troubling, the government argued that the court has no power to order Carpathia or others to maintain or return the data (we think the government is wrong on this point, as we argued in <a href="https://www.eff.org/document/brief-interested-party-kyle-goodwin">our brief</a>).</p>
<p class="MsoNormal">To be clear, as part of its criminal case against Megaupload, the government has frozen all of Megaupload’s funds. This means that Megaupload cannot pay Carpathia to turn the servers back on to allow its customers access to their data. When the government shut down Megaupload’s business, seized its domains, and froze its funds, it also deprived Mr. Goodwin and others of their rightful property. The government should make those parties whole again by working with the court, Megaupload, and Carpathia to devise a process to get their data returned.</p>
<p class="MsoNormal">The court will hear arguments next Friday. We will be there to make the case that Mr. Goodwin and others like him should get their files back. And we’re hoping that whatever process the court adopts for doing that can serve as a model in future cases where the government seizes websites with third-party content on them, a tactic that we fear we will see <a href="https://www.eff.org/deeplinks/2011/02/ice-seizures-raising-new-speech-concerns">all too often</a> in the future.</p>
<p class="MsoNormal"></p>
<p class="MsoNormal"><span><br /></span></p>
</div></div></div>Wed, 04 Apr 2012 18:15:47 +000070188 at https://www.eff.orgLegal AnalysisFair UseDMCAFile SharingJulie SamuelsEFF Urges Court to Reject Record Labels' Effort to Rewrite Copyright Lawhttps://www.eff.org/ar/press/releases/eff-urges-court-reject-record-labels-effort-rewrite-copyright-law
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Staggering Financial Penalty for Sharing 24 Songs Is Unreasonable, Unpredictable, and Hurts Innovation</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) and a coalition of libraries and public interest groups have asked an appeals court to affirm the downsized copyright damage award in Capitol v. Thomas-Rasset – the first individual file-sharing case to go to trial.&#13;</p>
<p>Juries in this long-running case have come up with different damage awards against Jammie Thomas-Rasset for sharing 24 songs: one for $220,000 and then, when the case was retried, another for a staggering $1.5 million. Last year, a federal judge reduced the award to $54,000, calling the jury's verdict "so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable." However, Capitol Records did not agree and appealed the judge's ruling to the 8th U.S. Circuit Court of Appeals.&#13;</p>
<p>In an amicus brief in support of Thomas-Rasset filed today, EFF explains that statutory damage awards must pass constitutional due process review. Without that review, damages are incredibly unpredictable and can discourage reasonable uses of copyrighted material that involve any legal risk.&#13;</p>
<p>"Copyright law should encourage innovation, creativity and the dissemination of information," said EFF Intellectual Property Director Corynne McSherry. "But fear of crushing liability if you guess wrong about whether a court will decide you are protected by fair use can chill experimentation and the creation of new consumer products and services. We don't know what will be the next YouTube, Spotify, or Pandora – and we'll never know if creators of technology are scared away from developing new ideas."&#13;</p>
<p>EFF also asked the court to affirm the district court's rejection of Capitol's "making available" theory, which claims that a person legally "distributes" a work if she simply makes it available to the public.&#13;</p>
<p>"The Copyright Act is very clear: a work isn't 'distributed' unless someone actually downloads it," said EFF Fellow Michael Barclay. "In essence, the labels want the courts to give them a pass on proving a crucial part of their case."&#13;</p>
<p>EFF's brief was joined by the Internet Archive, the Association of Research Libraries, the Association of College and Research Libraries, the American Library Association, and Public Knowledge.&#13;</p>
<p>For the full amicus brief in Capitol v. Thomas-Rasset:<br /><a href="https://www.eff.org/document/amicus-brief-8th-circuit-court-appeals"> https://www.eff.org/document/amicus-brief-8th-circuit-court-appeals</a>&#13;</p>
<p>Contacts:&#13;</p>
<p>Corynne McSherry<br />
Intellectual Property Director<br />
Electronic Frontier Foundation<br />
corynne@eff.org&#13;</p>
<p>Michael Barclay<br />
Fellow<br />
Electronic Frontier Foundation<br />
michael@eff.org</p>
</div></div></div>Fri, 10 Feb 2012 21:37:48 +000069684 at https://www.eff.orgRebecca JeschkeEFF Requests Information from Innocent Megaupload Users https://www.eff.org/ar/deeplinks/2012/01/eff-requests-information-innocent-megaupload-users
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">In the media firestorm surrounding the recent Megaupload takedown, there has been little lacking in the way of drama (<a href="http://arstechnica.com/tech-policy/news/2012/01/were-just-like-youtube-megaupload-lawyer-tells-ars.ars">police helicopters, midnight raids, safe rooms, shotguns</a>, and <a href="http://arstechnica.com/tech-policy/news/2012/01/megaupload-case-gets-weirder-with-gun-charges-flight-risks-and-an-inflatable-tank.ars">inflatable tanks</a>, for starters). The legal battles between the government and Megaupload are unlikely to end soon. In the meantime, however, many ordinary users of Megaupload’s services have been swept up in the government’s dragnet, and, as a consequence, have lost access to their own data.</p>
<p class="MsoNormal">Megaupload, of course, had many lawful customers (see <a href="http://arstechnica.com/gadgets/news/2012/01/megaupload-wasnt-just-for-pirates-angry-users-out-of-luck-for-now.ars">here</a> and <a href="http://www.techdirt.com/articles/20120120/15060817494/busta-rhymes-backs-megaupload-says-record-labels-are-real-criminals.shtml">here</a>, for example). Yet those people were given no notice that they might lose access to their data and no clear path to getting their property back. Setting aside the legal case against Megaupload, the government should try to avoid this kind of collateral damage, not create it.</p>
<p class="MsoNormal">We learned <a href="https://www.eff.org/files/Jan_24_govt_letter.pdf">yesterday</a> that the government has finished its investigation of Megaupload’s servers and claims that the companies that own those servers – Carpathia and Cogent – are free to delete their contents. Luckily, those companies aren't following the government's example of shooting first and asking later. To that end, Carpathia has put together a site at <a href="http://www.megaretrieval.com/">www.megaretrieval.com</a> where Megaupload customers can contact EFF and provide information to help assess<span> </span>the scope of the issue and possible responses.</p>
<p class="MsoNormal">If you believe you are one of these users, are based in the United States, and are looking for legal help to retrieve your data, please email your contact information to <a href="mailto:Megauploadmissing@eff.org">Megauploadmissing@eff.org</a>. While we will try to respond to everyone, you should understand that we are still at the preliminary stages of our investigation.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/megaupload-data-seizure">Megaupload Data Seizure</a></div></div></div>Tue, 31 Jan 2012 14:04:25 +000069579 at https://www.eff.orgFree SpeechFair UseFile SharingJulie SamuelsWho's Missing From Today's SOPA Hearing? A Short Listhttps://www.eff.org/ar/deeplinks/2011/11/whos-missing-todays-sopa-hearing-short-list
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The House Judiciary Committee will meet today for a hearing on the controversial Stop Online Piracy Act (SOPA). What could have been an opportunity for the committee to hear from a variety of stakeholders has devolved into a parade of pro-SOPA partisans. Scheduled to testify are representatives from the Register of Copyrights, Pfizer Global Security, the Motion Picture Association of America, the AFL-CIO, and Mastercard Worldwide—many of which helped to draft this legislation in the first place, and didn’t let anyone else into the room. The only scheduled witness in opposition to the bill is Katherine Oyama, policy counsel on copyright and trademark law for Google.&#13;</p>
<p>Whether you support or oppose the bill, there’s no question that it will affect a broad range of activities, which is one reason we’ve seen an extraordinary<a href="https://www.eff.org/deeplinks/2011/11/explosion-opposition-internet-blacklist-bill"> outcry of opposition</a> since the bill was introduced.&#13;</p>
<p>In case you are wondering who the Committee should be hearing from today, here is a small sampling of the stakeholders that deserve a seat at the negotiating table:&#13;</p>
<p><b>Public interest organizations</b>&#13;</p>
<p>EFF, Public Knowledge, the Center for Democracy and Technology, TechFreedom, the Competitive Enterprise Institute, Demand Progress and <a href="http://www.librarycopyrightalliance.org/bm%7Edoc/lca-sopa-8nov11.pdf">many others</a> have all <a href="https://www.eff.org/deeplinks/2011/11/explosion-opposition-internet-blacklist-bill">raised </a><a href="https://wfc2.wiredforchange.com/o/9042/p/dia/action/public/?action_KEY=8173">strong objections</a> to SOPA, including concerns that the language in the bill is so broad that it could be used to shut down access to almost any website.&#13;</p>
<p><b>Consumer organizations</b>&#13;</p>
<p>Consumer groups have also <a href="https://wfc2.wiredforchange.com/o/9042/p/dia/action/public/?action_KEY=8173">raised concerns</a> that SOPA could be used to close off online exchanges that provide lower prices for consumers and allow for anti-consumer practices by online service providers. And that’s only the beginning – if made law, this bill would give overreaching rightholders any easy way to threaten innovation, including social media and cloud computing, that consumers count on.&#13;</p>
<p><strong>Independent filmmakers and musicians</strong>&#13;</p>
<p>Independent artists are often innovators, trying out new technologies and business models in order to distribute and profit from their work. Independent producers of content have <a href="http://www.techdirt.com/articles/20111111/12040916725/why-all-filmmakers-should-speak-out-against-sopa.shtml">expressed</a> <a href="http://www.techdirt.com/articles/20111115/01142516772/sopa-gives-me-powers-that-i-dont-want.shtml">concern</a> that SOPA will shut down the innovative technologies they rely on, or prevent them from being built in the first place.&#13;</p>
<p><b>Internet Engineers</b>&#13;</p>
<p>The engineers who helped to build the Internet have <a href="http://www.protectinnovation.com/downloads/letter.pdf">warned</a> that SOPA will break the Internet by meddling with the Domain Name System, which links IP addresses to domain names.&#13;</p>
<p><b>Technology Companies</b>&#13;</p>
<p>Aside from Google, no technology company has a seat at the table. Google has joined a coalition of companies, including Facebook, eBay and Zynga, in opposing SOPA on the grounds that it will stifle innovation and cost the US tech-sector jobs. But surely the Committee needs to hear from some of the numerous job-creating companies in the tech sector – as well as the innovators of tomorrow – who might be affected by this bill?&#13;</p>
<p>This legislation is full of holes – and it appears its sponsors don’t want them exposed. Tell Congress to stop this bill now!</p>
</div></div></div>Wed, 16 Nov 2011 09:01:20 +000067784 at https://www.eff.orgCommentaryFree SpeechCreativity & InnovationFair UseFile SharingEva GalperinJudge Shuts Down Another Mass Copyright Case, Characterizes Lawsuits as “Massive Collection Scheme”https://www.eff.org/ar/deeplinks/2011/09/judge-shuts-down-another-mass-copyright-case
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In keeping with a growing <a href="https://www.eff.org/deeplinks/2011/08/expendables-mass-copyright-litigation-another">trend</a>, this week Federal Judge Bernard Zimmerman of the Northern District of California <a href="https://www.eff.org/files/On_The_Cheap_Order.pdf">severed</a> 5,010 Doe Defendants from a single case—effectively dismissing all but one defendant. EFF <a href="https://www.eff.org/files/On_The_Cheap_amicus_FINAL.pdf">participated</a> in the case as amicus.&#13;</p>
<p>This case, like <a href="https://www.eff.org/deeplinks/2010/09/field-guide-copyright-trolls">many we’ve seen</a> around the country, involved a pornographic work. Plaintiff sued more than 5,000 individuals anonymously based only on their ISP addresses, for allegedly exchanging an infringing file over a BitTorrent network. The copyright owner claimed that participation in BitTorrent “swarm” was a form of conspiracy, meaning it could sue everyone at once in California. &#13;</p>
<p>The court disagreed, vehemently, but that may not be the most notable aspect of the ruling. At least as remarkable is the court’s concern that mass copyright litigation is not really “litigation” but rather gaming of the judicial system to extract settlements. Discussing various public reports about copyright troll practices, for example, the court noted: &#13;</p>
<blockquote><p>
Article 1, section 8 of the Constitution authorizes Congress to enact copyright laws "to promote the Progress of Science and the useful Arts." If all the concerns about these mass Doe lawsuits are true, it appears that the copyright laws are being used as part of a massive collection scheme and not to promote useful arts.
</p>
</blockquote>
<p>The court’s analysis stressed the unfair pressure mass copyright litigation puts on defendants scattered all over the country:&#13;</p>
<blockquote><p>
Plaintiff, well aware of the difficulties out-of-state and out-of-district defendants would face if required to appear in San Francisco, has nonetheless sent them settlement demands which apparently inform them that they have been sued in this District. The defendants are left with a decision to defend themselves in San Francisco or hire an attorney to do so. This does not comport with the “principles of fundamental fairness,” . . ..
</p>
</blockquote>
<p>The ruling also noted the “logistical nightmare” these lawsuits create for courts, concluding:&#13;</p>
<blockquote><p>
[P]laintiff’s desire to enforce its copyright in what it asserts is a cost-effective manner does not justify perverting the joinder rules to create the management and logistical problems discussed above and then offer to settle with Doe defendants so that they can avoid digging themselves out of the morass plaintiff is creating.
</p>
</blockquote>
<p>Well said.&#13;</p>
<p>Unfortunately, the plaintiff in this case has had access to the defendants’ information for months, and has allegedly already settled with about 70 individuals. But even here there is some good news: the judge ordered the plaintiff to inform all defendants (except for the one that remains in the case) that they have been severed from the case by September 20, 2011. This should allow these 5,000 individuals to breathe (at least temporarily) a sigh of relief. &#13;</p>
<p>We hope more courts will follow Judge Zimmerman’s lead and help put a stop to these abusive lawsuits.&#13;</p>
</div></div></div>Thu, 08 Sep 2011 16:37:31 +000061508 at https://www.eff.orgFile SharingCopyright TrollsJulie SamuelsJudge Slashes P2P Award Again In Capitol v. Thomashttps://www.eff.org/ar/deeplinks/2011/07/judge-slashes-p2p-award-again-capitol-v-thomas
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In the latest development in the first individual file-sharing case to go to trial (three times now!), Judge Michael Davis today <a href="https://eff.org/files/ThomasJudgmentOrder.pdf">reduced</a> a $1.5 million damage award against the defendant Jammie Thomas-Rassett to just $54,000. Though he said he was reluctant to interfere with the jury's decision, the judge concluded that&#13;</p>
<blockquote><p>
[A]n award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first‑time willful, consumer infringer of limited means who committed illegal song file‑sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.
</p>
</blockquote>
<p>The judge also declined to enjoin Ms. Thomas-Rassett from making the plaintiffs' works available, noting that while she was enjoined from committing copyright infringement, he had already ruled that "the Copyright Act does not provide a making-available right." &#13;</p>
<p>The ruling does not come as an enormous surprise. In his 2008 ruling ordering a new trial due to an erroneous jury instruction on the "making available" issue, Judge Hunt criticized the first jury award against Thomas-Rasset (a comparatively miniscule $222,000) and <a href="http://www.eff.org/deeplinks/2008/09/capitol-v-thomas-judge-orders-new-trial-implores-c">implored</a> Congress to reconsider copyright's statutory damages scheme. This time, however, Judge Hunt expressly found that the jury's award was so severe and excessive that it violated due process. &#13;</p>
<blockquote><p>
[A]lthough Thomas‑Rasset played a role in the web of online piracy, she played a miniscule role – she was one of more than 2 million users sharing more than 800 million files on the day that MediaSentry obtained files from her. It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial.
</p>
</blockquote>
<p>Judge Davis is the second federal judge to find that massive jury awards against individual file-sharers violate due process. Last year, in <a href="http://www.eff.org/cases/re-sony-bmg-music-entertainment-et-al"><i>Sony v. Tenenbaum</i></a> Judge Nancy Gertner <a href="http://www.eff.org/deeplinks/2010/07/judge-cuts-damages-sony-v-tenenbaum">reduced</a> a $675,000 award against another individual file-sharer, Joel Tenenbaum, to just $67,500, finding that the original award was “unprecedented and oppressive” and noting that even the reduced award was “more than [she] might have awarded in [her] independent judgment.” &#13;</p>
<p>We applaud Judge Davis for attempting to inject a degree of sanity and proportionality into the <a href="http://www.eff.org/deeplinks/2010/11/thomas-rasset-damage-award-strange-unpredictable">dangerously unpredictable world of copyright damages.</a> Let's hope the First Circuit Court of Appeals takes heed as it considers the appeal in <i>Sony v. Tenenbaum.</i> As we explained last year in an <a href="https://www.eff.org/files/filenode/inresonybmgetal/EFFamicustenenbaum.pdf">amicus brief</a> filed in that case, excessive statutory damage awards can stifle creativity and innovation that may involve even a small risk of copyright liability; creators and technology innovators just won't want to take the chance that they might get hit with a massive damages award. Thus, failing to subject copyright damages awards to rigorous due process review is not just unconstitutional, it undermines the fundamental purpose of copyright law: to encourage creativity, dissemination of information, and innovation. &#13;</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/capitol-v-thomas">Capitol v. Thomas</a></div></div></div>Fri, 22 Jul 2011 21:18:18 +000061450 at https://www.eff.orgCommentaryFile SharingCorynne McSherrySpotify's U.S. Launch Highlights the Good, the Bad, and the Promise of Subscription-Based Music Serviceshttps://www.eff.org/ar/deeplinks/2011/07/spotifys-u-s-launch-highlights-good-bad-and
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In case you missed it, <a href="https://www.spotify.com/">Spotify's</a> long-awaited U.S. launch <a href="http://news.cnet.com/8301-13506_3-20079400-17/spotify-finally-launches-in-the-u.s/?tag=cnetRiver">is here</a>. Spotify now joins the ranks of services like <a href="http://www.rhapsody.com/">Rhapsody</a>, <a href="http://www.rdio.com/">Rdio</a>, and <a href="http://mog.com/">Mog</a> that allow users (for a fee) to stream unlimited music from multiple devices, make and keep playlists, and store music on mobile devices.&#13;</p>
<p>This is good news for music fans. Spotify has already proven successful in Europe, and, unlike its current U.S. competitors, provides a free, ad-based service where users can access a certain amount of music each month (after that, users can pay for unlimited songs and to have access on their mobile devices). This is just the type of product the record labels have failed time and again to offer their fans: convenient access to different amounts of music, to be consumed in different ways, at different and relevant price points. Instead of being forced to buy full-length CDs at $15.99, fans can now make their own decision about how much they value music and how much of it they want. Of course, the record labels could have launched a service like this years ago. <a href="https://www.eff.org/deeplinks/2011/03/it-s-time-recording-industry-stop-blaming-piracy">Instead of innovating</a>, they famously <a href="https://www.eff.org/riaa-v-people">sued their fans</a> (and <a href="http://www.techdirt.com/articles/20110414/10554513894/record-labels-pressure-spotify-into-being-worse-driving-users-back-to-piracy.shtml">reportedly fought</a> Spotify's U.S. entry) and are now left watching revenue go to others, despite their oft-repeated claims that they could not “compete with free.” Yet, multiple streaming services, <a href="https://www.eff.org/deeplinks/2011/06/partly-cloudy-skies-apple-s-cloud-services-are">music lockers</a>, and others have found a way.&#13;</p>
<p>While we are glad to see more choices for music fans – and hopefully more ways for artists to be paid – we still have some major concerns. Chief among them: users' rights to <a href="https://www.eff.org/data-portability-death-match">port their data</a>. Because streaming customers do not own their music, they cannot take it with them. Should they decide to try another service (or if a service goes under), users should be able to easily export titles of songs in playlists they created or a list of favorite music, etc. Users should also be able to choose independent add-ons that make the service more valuable, such as alternative means of organizing their music "collections." Without this kind of functionality, users are going to be disappointed, and we are unlikely to see the real competition that helps drive innovation.&#13;</p>
<p>More robust network connections, the popularity of tablets and smartphones, and the hype surrounding Spotify lead us to believe that streaming music's time may have come. But if users lose access to the work they’ve invested in searching through music catalogues, setting up playlists and favorites, and otherwise managing their music-listening habits, downloading music (legally or not) will still be a better alternative for many. We urge these new content companies to provide their users tools, such as convenient data portability and support interoperability. Then at last, we might be able to show the record labels that it is indeed quite possible to "compete with free."</p>
</div></div></div>Thu, 14 Jul 2011 22:40:37 +000061442 at https://www.eff.orgFair UseFile SharingCreativity & InnovationJulie SamuelsBig Media Tramples On Constitutional Rights to Protect Antiquated Business Modelhttps://www.eff.org/ar/deeplinks/2011/05/big-media-tramples-constitutional-rights-protect
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In its ongoing battle against music piracy, the Recording Industry Association of America (RIAA) is backing a bill in the California legislature, <a href="http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=sb_550&amp;sess=CUR&amp;house=S">SB 550</a>, which permits the police to disregard the Fourth Amendment. SB 550 would allow law enforcement to search without a warrant any CD, DVD, Blu-Ray or other “optical disc” manufacturer to ensure the discs they are producing carry legally required identification marks. SB 550 easily passed in the Senate yesterday and is now headed to the State Assembly. &#13;</p>
<p>The Supreme Court has long recognized that the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to commercial property.<sup>1</sup> In most instances, a warrant is required to search a business. However, there is a narrow exception that permits warrantless searches of “closely regulated” industries if: (1) there is a substantial government interest in the search; (2) the warrantless search is necessary to further that interest; and (3) there are constitutionally adequate substitutes for a warrant. Plus, the warrantless searches must be limited in time, place and scope.<sup>2</sup></p>
<p>SB 550 attempts to frame the optical disc manufacturing industry as “closely regulated”, bringing it within this otherwise narrow exception to the warrant requirement. But there are at least four problems with this theory.&#13;</p>
<p><b>1. Optical Disc Manufacturing Is Not a “Closely Regulated” Industry</b>&#13;</p>
<p>A “closely regulated” industry is one that has a history of government oversight and regulation.<sup>3</sup> Usually, this means industries that have some connection to the public’s health and safety, such as automobile junkyards, liquor license holders, firearm dealers, mine operators and nursing homes, that require permits to operate. &#13;</p>
<p>Optical disc manufacturers, by contrast, have little history of government oversight. Someone who wants to manufacture CDs or DVDs can just open shop and start production; there are no registration or licensing requirements specific to optical disc manufacturers, apart from the requirement they stamp every disc with a unique identifier. &#13;</p>
<p><b>2. There Is No Substantial Government Interest</b>&#13;</p>
<p>All the industries mentioned above have an effect on the public’s health and welfare, which is why the government has a substantial interest in regulating them. This is true even of automotive shops, as car theft leads to higher insurance premiums for consumers. Regulating stolen car parts takes unsafe vehicles off the road, and discourages people from getting shoddy mechanical work with stolen parts. And most importantly, it reduces the violence associated with car theft. The same concern about public health is why the government regulates mining, one of the most dangerous professions in the world.&#13;</p>
<p>But there is no substantial government interest in regulating disc manufacturers. <a href="http://www.latimes.com/business/la-fi-piracy-searches-20110518,0,5349987,full.story">According</a> to the bill's sponsor, state Senator Alex Padilla (D-Pacoima), fraudulent CDs and DVDs “steal revenue from artists, retailers and our entertainment sector” and “undermine our economy and California's role as a global leader in music and film.” Of course, it's important to help make sure artists are rewarded for their hard work. But pursuing that goal shouldn’t come at the cost of ignoring the constitutional rights of California small businesses. And of course, permitting the warrantless searches themselves may undermine the California economy if optical disc producers decide to move their business out of the state altogether to escape the law. &#13;</p>
<p><b>3. Warrantless Searches Are Unnecessary</b>&#13;</p>
<p>Search warrants are not impossible to obtain. For more than 200 years, law enforcement officers have obtained search warrants and been able to effectively investigate crime. In California, law enforcement can submit search warrant affidavits by telephone or email.<sup>4</sup></p>
<p>Nor is there anything inherently different about investigating optical disc manufacturers that justifies a blanket exception to the Fourth Amendment. If law enforcement agencies tasked with investigating illegal gun and drug trafficking, fraud and physical violence can comply with the Fourth Amendment’s warrant requirement, what makes investigating music piracy any different?&#13;</p>
<p>Obtaining a warrant requires only that the police have probable cause to believe a particular manufacturer is engaging in illegal activity. If they have that belief, a warrant can be obtained and a plant searched. The police can still have the element of surprise on their side, as a search warrant does not require prior notice to the businesses or the public.&#13;</p>
<p><b>4. There Are No Limits to the Searches Authorized by SB 550</b>&#13;</p>
<p>SB 550 claims that the “scope of the inspection shall be restricted to the physical review of items and collection of information necessary to verify compliance” with state law. But in the next paragraph, the bill empowers law enforcement to:&#13;</p>
<ul><li>Take inventory of all manufacturing equipment
</li>
<li>Review any record, book or document concerning the business
</li>
<li>Remove any disc, production part, record or book for as long as wanted and without any time limitation
</li>
</ul><p>These aren’t limits, but a blank check: without a warrant or any suspicion of wrongdoing, law enforcement can take whatever they want, wherever they want, for as long as they want. Nothing about this is “reasonable” under the Fourth Amendment.&#13;</p>
<p><b>SB 550 Is Nothing More Than A Criminal Fishing Expedition</b>&#13;</p>
<p>Rather than creating a tool to regulate the optical disc industry, SB 550 arms law enforcement with sweeping new powers with little justification. It’s doubtful that warrantless snooping of optical disc plants will have any effect on the losing battle against piracy. It’s clear that the market for CD sales is shrinking with the advent of digital music files, internet radio stations, and online music lockers. Perhaps the RIAA needs to rethink its business model rather than push for a powerful—and unconstitutional—tool.&#13;</p>
<p>All Californians—not just the optical disc industry—should stand up to protect the Fourth Amendment. Now is the time to write your <a href="http://192.234.213.69/smapsearch/framepage.asp">local Assembly member</a> to oppose SB 550 and require law enforcement to come back with a warrant! &#13;</p>
1. <u>See v. City of Seattle</u>, 387 U.S. 541 (1967).<br />
2. <u>See generally</u> <u>New York v. Burger</u>, 482 U.S. 691 (1987).<br />
3. <u>Marshall v. Barlow’s, Inc.</u>, 436 U.S. 307 (1978).<br />
4. California Penal Code § 817(c).
</div></div></div>Wed, 01 Jun 2011 20:38:57 +000061389 at https://www.eff.orgLegislative AnalysisDMCADRMFile SharingHollywood v. DVDHanni FakhouryNew Music Locker Services Fail To Recognize Full Potentialhttps://www.eff.org/ar/deeplinks/2011/05/current-music-locker-services-will-not-save
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Google <a href="http://news.cnet.com/8301-31001_3-20061280-261.html?tag=mncol;txt">announced today</a> that it will join <a href="http://news.cnet.com/8301-1023_3-20048160-93.html?tag=mncol;1n">Amazon</a> in offering consumers a cloud-based music locker service. Google’s news, which had been rumored for some time, presents an opportunity to both answer and ask some questions about the future of the music industry. &#13;</p>
<p>Those questions make clear that while services like these do improve the ability for fans to access their music, they still only get us a little bit closer to the larger goal: making sure artists get paid and fans are happy.&#13;</p>
<p><b><u>Do music locker services violate current copyright laws?</u></b>&#13;</p>
<p>Unlike streaming services, such as <a href="http://www.rhapsody.com/home.html">Rhapsody</a> or <a href="http://mog.com/">Mog</a>, Google’s and Amazon’s music lockers allow users to upload their own music files and then access those files from either the Internet or devices equipped to run those companies’ programs (in Google’s case, that means a phone running the Android operating system).&#13;</p>
<p>For this kind of personal locker, Amazon and Google believe <a href="http://news.cnet.com/8301-30686_3-20061575-266.html?tag=cnetRiver">they don’t need licenses</a> from record labels that own copyrights in the songs – and we agree. Essentially, all these services do is allow you to upload a song you already own and access that file from different browsers and devices, not much different from transferring a song you bought to your iPod. &#13;</p>
<p>Apparently to avoid any potential copyright liability, neither Amazon nor Google “de-duplicate” users’ files, which means that users access the same files they themselves uploaded, even when those files are identical to others on the system. As a result, millions of identical files may exist in the same cloud. &#13;</p>
<p>Whether or not Amazon’s and Google’s copyright fears are well founded is still an open question and may depend, at least in part, on the ongoing litigation between <a href="https://www.eff.org/cases/emi-v-mp3tunes">EMI and MP3Tunes</a>. MP3Tunes is a music locker, but – unlike Amazon and Google – it does de-duplicate its files and it provides a search engine on the side allowing users to search for more music. EMI claims that MP3Tunes should be held responsible for infringing content stored in the lockers of some of its users, while MP3Tunes contends that it is <a href="https://www.eff.org/files/filenode/emi_v_mp3tunes/07civ9931WHP-AmicusBrief.pdf">immune from liability</a> under the "safe harbor" provisions in the Digital Millennium Copyright Act (DMCA). &#13;</p>
<p> While we wait for a ruling in the MP3Tunes case, it appears that Amazon and Google have chosen to play it safe by storing potentially millions of identical files (just another example of how copyright laws fail to address modern uses of copyrighted works).&#13;</p>
<p><b><u>Are music locker services the answer to an ailing recording industry?</u></b>&#13;</p>
<p>Personal music locker services are certainly an improvement on current industry services. By allowing music fans increased access to the content they already own, services like Amazon’s and Google’s improve consumers’ music experiences by making it easier to listen to that music where and whenever they want.&#13;</p>
<p>But we’re a long way from realizing the potential of cloud-based music services, which could increase consumers’ access to music they already own while offering new ways to find and purchase music and other add-on content from artists.&#13;</p>
<p>It has been <a href="http://www.techdirt.com/articles/20110510/10442414228/google-major-labels-got-way-cool-features-google-music.shtml">widely reported</a> that Google attempted to secure licensing deals that would have allowed it to offer more to consumers – for example, the ability to access music one owns without having to take the time to upload it to the cloud (which can be a slow process). But it seems the record labels are still blocking efforts to give music fans with more or easier access to new music, whether by <a href="https://www.eff.org/wp/better-way-forward-voluntary-collective-licensing-music-file-sharing">compulsory licenses</a> or other <a href="https://www.eff.org/deeplinks/2011/03/it-s-time-recording-industry-stop-blaming-piracy">non-traditional revenue streams</a>. Not only does less access hurt fans, but it hurts artists who might otherwise benefit from innovative business models. So while we applaud Amazon’s and Google’s attempt to better their customers’ music experience, there’s no question that their services fall far short of what fans and artists really need and want.&#13;</p>
</div></div></div>Tue, 10 May 2011 23:04:30 +000061371 at https://www.eff.orgFair UseFile SharingCreativity & InnovationJulie SamuelsJudge Stays Discovery in OpenMind v Doeshttps://www.eff.org/ar/deeplinks/2011/03/judge-stays-discovery-openmind-v-does
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><i><u>UPDATE</u></i>: The Court in <a href="https://www.eff.org/press/archives/2011/03/16">OpenMind Solutions v. Does 1 – 2925</a> heard oral argument on April 11, 2011. At the end of the hearing — during which the judge expressed some initial concerns with OpenMind's attempt to lump the defendants into a class action — the judge requested that OpenMind and EFF submit briefs on the merits of the class action lawsuit. Those briefs will be due in two weeks; we will then wait for a ruling from the Court. In the meantime (as reported below), discovery remains stayed.&#13;</p>
<p>As we've been <a href="https://www.eff.org/issues/copyright-trolls">reporting</a> for some time, a series of lawsuits has been filed across the U.S. against thousands of individuals accused of having illegally uploaded and downloaded copyrighted works in violation of copyright law. One of the latest of those suits is a case called <a href="https://www.eff.org/press/archives/2011/03/16">OpenMind Solutions v. Does 1 – 2925</a>, a case in which EFF filed an <a href="https://www.eff.org/files/filenode/openmind_v_does/openmind-amicus-filed.pdf"> amicus brief </a> asking the judge to quash the subpoenas seeking the identities of the nearly 3,000 anonymous defendants.&#13;</p>
<p>We are glad to report that the judge has decided to stay discovery pending a hearing on the issues EFF raised in its brief, which means that (at least temporarily), ISPs need not comply with the subpoenas sent out by OpenMind’s attorney John Steele.&#13;</p>
<p>The hearing in this case is scheduled for April 11. In the meantime, if you are an ISP or an anonymous Doe defendant, you should make sure your attorney is aware of the judge’s order. For more information, or if you have further questions, consult EFF’s <a href="https://www.eff.org/issues/file-sharing/subpoena-defense">Subpoena Defense Resources page</a>.&#13;</p>
</div></div></div>Wed, 30 Mar 2011 17:47:39 +000061315 at https://www.eff.orgFile SharingCopyright TrollsJulie SamuelsAnother New Study Shows That Filesharing Doesn’t Deter Artists From Making Music https://www.eff.org/ar/deeplinks/2011/03/another-new-study-shows-filesharing-doesn-t-deter
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Further proof that the recording industry’s oft-repeated claims of the downfall of the entire music industry hold no water: a new <a href="http://www.tc.umn.edu/~jwaldfog/pdfs/American_Pie_Waldfogel.pdf">report</a> finding that filesharing has led directly to "reduced costs of bringing works to market and a growing role of independent labels." In other words, in the past decade, we have seen more music from independent outlets and at lower prices – something that consumers and music fans should all be happy about.&#13;</p>
<p>The study, by University of Minnesota economist Joel Waldfogel, proves just what we’ve been saying <a href="https://www.eff.org/deeplinks/2011/03/it-s-time-recording-industry-stop-blaming-piracy">as recently as last week</a> – that filesharing (unauthorized or not) has led more artists to create more music, and – just as importantly – more different music. U.S. copyright law is based on a compromise recognized in the Constitution that grants authors (or artists, or musicians) a limited monopoly designed to give those authors an incentive to make their creative works. As we’ve long known and as this study makes clear yet again, even in the face of filesharing, those incentives still exist.&#13;</p>
</div></div></div>Mon, 28 Mar 2011 17:20:04 +000061314 at https://www.eff.orgFile SharingCreativity & InnovationJulie SamuelsIt’s Time for the Recording Industry to Stop Blaming "Piracy" and Start Finding A New Wayhttps://www.eff.org/ar/deeplinks/2011/03/it-s-time-recording-industry-stop-blaming-piracy
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>As many — <a href="https://www.eff.org/deeplinks/2006/04/petition-congress-oppose-riaa-lawsuits-forge-better-way-forward">EFF</a> <a href="https://www.eff.org/wp/when-push-comes-shove-hype-free-guide-evaluating-technical-solutions-copyright-infringement-campu">included</a> — have been saying for years, filesharing is not the reason that the recording industry has fallen on hard financial times. In fact, the recording industry’s complaints that the sky is falling really only apply to the <i>recording industry</i>, and not musicians and the fans, who have seen <a href="https://www.eff.org/deeplinks/2010/11/secrets-new-music-industry-old-music-industry">increased music purchases, increased artist salaries, and the availability of more music than ever before</a>. And now two new reports further debunk the recording industry's myth.&#13;</p>
<p>First, the London School of Economics released a <a href="http://www.scribd.com/doc/51217629/LSE-MPPbrief1-creative-destruction-and-copyright-protection">paper</a> finding that while filesharing may explain some of the decline in sales of physical copies of recorded music, the decline “should be explained by a combination of factors such as changing patterns in music consumption, decreasing disposable household incomes for leisure products and increasing sales of digital content through online platforms.” And even if the sales of recorded music are down, there is an important distinction to draw: the <i>recording</i> industry may be hurting, but the <a href="http://digitalmusicnews.com/stories/031811cea"><i>music</i> industry is thriving</a>. For example, the LSE paper points out that in the UK in 2009, the revenues from live music shows outperformed recorded music sales.&#13;</p>
<p>We’ve also seen more and more artists making a go of it on their own. Rebecca Black, a 13-year-old, is <a href="http://www.billboard.biz/bbbiz/industry/digital-and-mobile/rebecca-black-s-first-week-sales-not-bad-1005084972.story">reportedly netting nearly $25,000 <i>a week</i></a> from digital downloads of her hit song, "Friday." The band OK Go famously made a name for itself by self-producing widely popular music videos and then leaving a big record label that failed to <a href="https://www.nytimes.com/2010/02/20/opinion/20kulash.html"> “recognize the basic mechanics of the Internet”</a> by attempting to prohibit embedding of the band's video content. As the lead singer noted, "[c]urbing the viral spread of videos isn't benefiting the company’s bottom line, or the music it's there to support." Even bands with record deals are finding different ways to make money. For example, the popular band the Black Keys <a href="http://www.chicagotribune.com/entertainment/music/ct-ott-1224-black-keys-20101224,0,7215819.column">makes 85% of its money from live shows</a>.&#13;</p>
<p>Another recent study, this one by the Social Science Research Council, delves into international aspects of "piracy," especially in emerging markets, and finds unauthorized filesharing in some developing economies has actually <i>created</i> opportunities for media companies to come up with innovative business models that allow legal and widespread access to media goods. For example, <a href="http://www.techdirt.com/articles/20110308/02354213395/massive-research-report-piracy-emerging-economies-released-debunks-entire-foundation-us-foreign-ip-policy.shtml">in India</a>, "where large domestic film and music industries dominate the national market, [large media companies] set prices to attract mass audiences, and in some cases compete directly with pirate distribution." The impact of this cannot be understated: in many of these emerging markets, the new business models are improving legal access to music and art that was previously unaffordable for many people.&#13;</p>
<p>The SSRC report also points out that, despite the content industry’s dire predictions, the media business is still thriving: "Software, DVD, and box office revenues in most middle-income countries have risen in the past decade — in some cases dramatically. Sales of CDs have fallen, but the overall music business, including performance, has grown."&#13;</p>
<p>Despite these realities, the policy debate continues to focus on enforcement and "strengthening intellectual property," which, SSRC rightly points out, is incredibly counterproductive and comes at a high social cost. Instead of discussing ways to make sure artists get paid for their work and fans have access to media goods, time and energy is wasted debating how to continue an enforcement policy that has failed to actually curb unauthorized filesharing. &#13;</p>
<p>We are encouraged to see studies like these that challenge policy makers to shift the tone of the debate to a more productive conversation about how to innovate and use new technologies to benefit artists and their fans. Because the bottom line is this: those who find ways to capitalize on new technologies will be the ones to succeed going forward.&#13;</p>
</div></div></div>Fri, 25 Mar 2011 22:42:13 +000061311 at https://www.eff.orgFair UseFile SharingCreativity & InnovationJulie SamuelsCopyright Troll Gives Up in Porn-Downloading Casehttps://www.eff.org/ar/press/archives/2011/01/31
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Another Victory in Battle Against Flawed Copyright Lawsuits</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Dallas, TX - An adult video company has dropped its flawed lawsuit accusing hundreds of Internet users of illegally downloading pornography. The Electronic Frontier Foundation (EFF) and Public Citizen (PC) are counsel for the anonymous defendants at the request of the court.&#13;</p>
<p>Late last week, Mick Haig Productions dismissed its case against 670 "John Does," claiming they had infringed the company's copyrighted materials on a file-sharing service. The notice of dismissal came after EFF and Public Citizen argued that Mick Haig should not be allowed to send subpoenas for the Does' identifying information, because it had sued hundreds of people in one case, in the wrong jurisdiction and without meeting the constitutional standard for obtaining identifying information.&#13;</p>
<p>"Copyright owners have a right to protect their works, but they can't use shoddy and unfair tactics to do so," said EFF Intellectual Property Director Corynne McSherry. "When adult film companies launch these cases, there is the added pressure of embarrassment associated with pornography, which can convince those ensnared in the suits to quickly pay what's demanded of them, whether or not they have legitimate defenses. That's why it's so important to make sure the process is fair."&#13;</p>
<p>Mick Haig Productions dropped the case just 48 hours after EFF and PC demanded that it withdraw subpoenas Mick Haig's lawyer apparently issued while the question of whether the court should allow the subpoenas at all was still under consideration by the court.&#13;</p>
<p>"This dismissal is wonderful news for the 670 anonymous defendants in this case, but troubling questions remain about the behavior of Mick Haig Productions," said EFF Senior Staff Attorney Matt Zimmerman. "Given the extremely invasive power of subpoenas, plaintiffs have a duty to ensure that subpoenas are not misused. EFF is committed to ensuring that litigants are held accountable for taking shortcuts around the due process rights of their opponents, especially in cases such as this one where the very act of obtaining someone's identity could be improperly leveraged into pressure to settle a claim."&#13;</p>
<p>This is the latest victory in EFF's battle against copyright trolls. Lawyers around the country are discovering that mass copyright litigation is not such a lucrative business model if you have to pursue your cases fairly. In December and early January, federal judges in West Virginia and California recognized that it is improper to join thousands of people in one lawsuit based solely on the fact that they all allegedly used the same software protocol to share one or more copyright works. As a practical matter, this means that copyright owners in those cases must file separate lawsuits against each alleged infringer and must have a reasonable basis for believing that they are filing in the right court. Given the additional expense of filing and litigating these cases fairly -- expenses the plaintiffs were likely hoping to avoid by ignoring the court rules and due process requirements -- these cases may not go much further.&#13;</p>
<p>"There is often a gap between when cases are filed and when judges have the opportunity to look at them closely," said EFF Legal Director Cindy Cohn. "But that time appears to have arrived. Judges around the country are waking up to the dangers of mass copyright litigation and taking action to make sure the process is fair for the thousands of people who have been targeted in these suits."&#13;</p>
<p>For the full notice of dismissal:<br />
https://www.eff.org/files/filenode/uscg/mickhaignotice.pdf&#13;</p>
<p>For more on the subpoenas:<br />
https://www.eff.org/files/filenode/uscg/stoneletter.pdf&#13;</p>
<p>Contacts:&#13;</p>
<p>Cindy Cohn<br />
Legal Director<br />
Electronic Frontier Foundation<br />
cindy@eff.org&#13;</p>
<p>Corynne McSherry<br />
Intellectual Property Director<br />
Electronic Frontier Foundation<br />
corynne@eff.org&#13;</p>
<p>Matt Zimmerman<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
mattz@eff.org</p>
</div></div></div>Tue, 01 Feb 2011 08:04:09 +000062232 at https://www.eff.orgRebecca JeschkeMasterCard’s Support for COICA Threatens A Free And Open Internethttps://www.eff.org/ar/deeplinks/2011/01/mastercards-support-for-coica
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In the last months of 2010, the <a href="https://www.eff.org/wikileaks">WikiLeaks</a> wars reminded transparency activists of something copyright and trademark lawyers know all too well – online speech is <a href="https://www.eff.org/deeplinks/2008/11/de-beers-internet-intermediaries">only as strong</a> as the many <a href="https://www.eff.org/deeplinks/2010/12/amazon-and-wikileaks-first-amendment-only-strong">service providers</a> on which it depends. All too often web hosts, domain name registrars and other service providers cave at the slightest legal or government pressure, with disastrous consequences for their users.&#13;</p>
<p>We had hoped that credit card and other financial services would resist efforts to pressure them to stop processing payments to controversial websites. So we were dismayed to <a href="http://news.cnet.com/8301-31001_3-20025879-261.html”">hear</a> that not only does MasterCard support the passage of the Internet Censorship and Copyright Bill ("<a href="https://www.eff.org/coica">COICA</a>"), but that it also appears to be signaling a willingness to voluntarily stop processing payments made to sites that allegedly offer “pirated” or other copyrighted content. Keep in mind that courts have <a href="https://www.eff.org/files/Perfect 10 v Visa.pdf">ruled</a> that credit card companies do not face liability for potentially infringing activities on site for which they merely process payments.&#13;</p>
<p>Of course, if COICA becomes law, the Justice Department would have the power to order MasterCard to stop processing payments to certain sites. That's one reason <a href="https://www.eff.org/deeplinks/2010/11/case-against-coica">we are worried</a> about the effects of COICA: it offers a new process for shutting down websites deemed “bad sites” without appropriate safeguards to prevent the takedown of noninfringing content, including political and other speech. In effect, it enlists service providers as censors, necessarily hampering Internet commerce and innovation. &#13;</p>
<p>Any decision by Mastercard to stop processing payment <i>voluntarily</i> would be even more troubling. As the New York Times recently wrote in an <a href="https://www.nytimes.com/2010/12/26/opinion/26sun3.html?_r=1">editorial</a>:&#13;</p>
<blockquote><p>[A] bank’s ability to block payments to a legal entity raises a troubling prospect. A handful of big banks could potentially bar any organization they disliked from the payments system, essentially cutting them off from the world economy.</p>
</blockquote>
<p>For example, MasterCard might decide to stop processing payments to popular hosting sites such as <a href="http://www.rapidshare.com">RapidShare</a>, even though at least one court has ruled that RapidShare <a href="https://www.eff.org/files/Rapidshare injunctive relief ruling.pdf">likely is not guilty of infringement</a>. Given the importance of a consistent revenue streams to emerging companies, blocking payments might effectively mean putting them out of business. &#13;</p>
<p>The Internet only remains open, accessible and vibrant when the entire chain of providers operates together: financial transaction providers, service providers, hosting providers, content providers, and all of the other companies that keep sites online and accessible. We encourage MasterCard – along with all others who help provide availability and access on the Internet – to reverse course and choose to promote a thriving Internet by refusing to serve as private censors and standing up against COICA. &#13;</p>
</div></div></div>Wed, 26 Jan 2011 22:13:13 +000061249 at https://www.eff.orgFree SpeechFile SharingCreativity & InnovationSOPA/PIPA: Internet Blacklist LegislationWikileaksJulie SamuelsEFF Calls for Court to Affirm Downsized Copyright Damageshttps://www.eff.org/ar/press/archives/2011/01/04
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Unreasonable Jury Award in Sony v. Tenenbaum Suit Raises Constitutional Questions</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) urged a federal court Monday to affirm downsized damages in Sony v. Tenenbaum, a file-sharing case in which a jury originally ordered a college student to pay $675,000 for infringing copyright in 30 songs. EFF was represented by the Stanford Fair Use Project and the Samuelson Law, Technology &amp; Public Policy Clinic in filing the amicus brief.&#13;</p>
<p>A federal judge reduced the jury award to $67,500 last July, citing constitutional concerns and basic fairness. The record companies appealed the judge's decision to the 1st U.S. Circuit Court of Appeals. In Monday's brief, EFF argues that the judge was right to try to ensure that damages in infringement cases bear a reasonable relationship to actual harm.&#13;</p>
<p>"The Supreme Court has ruled that courts should review statutory damage awards to ensure they are not grossly excessive," said EFF Intellectual Property Director Corynne McSherry. "But unfortunately, courts have often failed to do so. This is an opportunity for the appeals court to clarify copyright law for creators and guarantee they have their due process rights."&#13;</p>
<p>Right now, it is difficult to predict copyright damages. Any creator who relies on an untested theory of fair use or other copyright exemption could be forced to pay up to $150,000 per work if she loses in court. This threat chills start-up companies and online artists as well as libraries and digital archives that may need to enter uncharted areas of copyright law in order to innovate. &#13;</p>
<p>"The fundamental purpose of copyright law is to encourage innovation, creativity, and the dissemination of information," said McSherry. "But the fear of crushing liability chills vital experimentation and creativity. Due process review can help bring damage awards back in line with copyright's purpose."&#13;</p>
<p>For the full amicus brief:<br />
https://www.eff.org/files/filenode/inresonybmgetal/EFFamicustenenbaum.pdf&#13;</p>
<p>Contact:&#13;</p>
<p>Corynne McSherry<br />
Intellectual Property Director<br />
Electronic Frontier Foundation</p>
</div></div></div>Tue, 04 Jan 2011 16:37:38 +000062229 at https://www.eff.orgRebecca Jeschke2010 Trend Watch Update: Books and Newspapershttps://www.eff.org/ar/deeplinks/2010/12/2010-trend-watch-update-books-and-newspapers
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>At the beginning of this year EFF identified <a href="https://www.eff.org/deeplinks/2010/01/trends-2010">a dozen important trends</a> in law, technology and business that we thought would play a significant role in shaping digital rights in 2010, with a promise to revisit our predictions at the end of the year. Now, as 2010 comes to a close, we're going through each of our predictions one by one to see how accurate we were in our trend-spotting. Today, we're looking back on Trend #2, the future of books and newspapers:&#13;</p>
<blockquote><p>Since 2000, the music industry has most spectacularly flailed (and failed) to combat the Net's effect on its business model. Their plans to sue, lock-up and lobby their way out of their problem did nothing to turn the clock back, but did cause serious damage to free speech, innovation and fair use.&#13;</p>
<p>These days, the book and newspaper industries are similarly mourning the Internet's effect on their bottom line. In 2009, Rupert Murdoch changed the tone of the debate when he called those who made fair use of his papers' content "thieves." We think 2010 and beyond will see others in the print world attempt to force that view, and break the fair use doctrine by lobbying to change accepted copyright law, challenging it in the courts, or by placing other pressures on intermediaries.&#13;</p>
<p>A cluster of similar battles around user control are also gathering around e-reader products like Kindle and Google Book Search, many of which rewrite the rules for book ownership and privacy wholesale. </p>
</blockquote>
<p>We were largely right about this one, although in a way we didn't forsee. This year we saw the Las Vegas Review Journal newspaper join with some lawyers called <a href="https://www.eff.org/deeplinks/2010/09/righthavens-own-brand-copyright-trolling">Righthaven</a> and lurch down the RIAA's dark path by launching hundreds of "copyright troll" lawsuits against individual bloggers and others. As with the music industry's failed "sue the customers" gambit, this one has done nothing to help the newspaper industry, but has already caused damage to free speech and fair use. In 2011 we hope to see the tide turn, though, as the judges hearing the Righthaven cases are starting to raise concerns about <a href="http://www.techdirt.com/articles/20101122/23335211979/judge-asks-righthaven-to-explain-why-reposting-isnt-fair-use-even-when-defendant-didnt-claim-fair-use.shtml">fair use</a> and other problems with this ugly business model. &#13;</p>
<p>On e-Readers, though, 2011 was still a year of early market growth, with the iPad entering into the fray and the publishing industry still generally embracing DRM (it took the music industry a few years to give up on DRM so it's disappointing but no big surprise to see the publishing industry do the same). On Google Books we're still waiting, since the federal Judge hearing the big lawsuit took a long day of testimony in the in February but has not yet ruled.&#13;</p>
</div></div></div>Thu, 23 Dec 2010 22:35:21 +000061220 at https://www.eff.orgNews UpdateFree SpeechFile SharingCreativity & InnovationCindy CohnJudge Blocks Copyright Trolls in Porn-Downloading Lawsuitshttps://www.eff.org/ar/press/archives/2010/12/16
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Orders Film Companies to Stop Abusing the Law When Suing Accused File-Sharers</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - In a big victory in the fight against copyright trolls, a judge in West Virginia has blocked an attempt to unmask accused file sharers in seven predatory lawsuits involving the alleged illegal downloading of pornography. The Electronic Frontier Foundation (EFF), working with Charles J. Kaiser of Phillips, Gardill, Kaiser &amp; Altmeyer, PLLC, filed an amicus brief in the case, arguing that the film companies were abusing the law in an attempt to pressure settlements.&#13;</p>
<p>In these cases -- as in many others across the country -- the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lumped hundreds of defendants together regardless of where the IP addresses indicate the defendants live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.&#13;</p>
<p>"This is the next nail in the coffin of the copyright trolls," said EFF Legal Director Cindy Cohn. "Now that judges are starting to reject the shoddy and unfair tactics being used by the attorneys filing these cases and force plaintiffs to play by the rules, this type of mass litigation will no longer be a good business model." In the seven West Virginia cases, collectively suing over 5,400 people, Time Warner Cable moved to quash subpoenas seeking the identities of accused filed sharers. EFF"s supporting amicus brief specifically noted the problems with suing hundreds of unconnected individuals in the same lawsuit. The judge's ruling today closely followed EFF's reasoning, ordering the plaintiffs to re-file their actions against each defendant individually.&#13;</p>
<p>"These lawsuits have caused massive collateral damage to the individuals targeted, due process, and the legal profession," said EFF Intellectual Property Director Corynne McSherry. "Copyright owners have a right to protect their works, but not at the expense of the due process rights of thousands of Doe defendants."&#13;</p>
<p>In a further blow against the plaintiffs' blunderbuss tactics, the court also forbade the plaintiffs from re-filing unless the plaintiffs had a valid reason to believe the Does actually were located in West Virginia, noting that a simple Google search would narrow the field.&#13;</p>
<p>"Courts must protect the rights of each and every defendant, and attempts to game the system inevitably puts those rights at risk," said EFF Senior Staff Attorney Matt Zimmerman. "We are grateful that the court saw through that attempt here and hope that others avoid this unwarranted, harmful attack in the future."&#13;</p>
<p>The West Virginia order comes on the heels of a ruling by a judge in the District of Columbia earlier this month that dismissed hundreds of individuals from across the country named in the U.S. Copyright Group's troll campaign due to lack of personal jurisdiction in Washington, D.C.&#13;</p>
<p>For the judge's full orders:<br />
https://www.eff.org/cases/west-virginia-copyright-troll-lawsuits&#13;</p>
<p>For more on copyright trolls:<br />
https://www.eff.org/issues/copyright-trolls&#13;</p>
<p>Contacts:&#13;</p>
<p>Cindy Cohn<br />
Legal Director<br />
Electronic Frontier Foundation<br />
cindy@eff.org&#13;</p>
<p>Corynne McSherry<br />
Intellectual Property Director<br />
Electronic Frontier Foundation<br />
corynne@eff.org</p>
</div></div></div>Thu, 16 Dec 2010 21:53:37 +000062225 at https://www.eff.orgRebecca JeschkeEFF Asks Judges to Protect Identities in Porn-Downloading Lawsuitshttps://www.eff.org/ar/press/archives/2010/11/29
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Risk of Embarrassment Pressures Defendants to Settle, Regardless of Merit</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) has asked judges in Texas and West Virginia to block requests to unmask accused file sharers in several predatory copyright troll lawsuits involving the alleged illegal downloading of pornography.&#13;</p>
<p>The cases were filed by two different companies and involve different copyrighted adult material. However, the tactics are the same. In both cases, the owners of the adult movies filed mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where the IP addresses indicate the defendants live. Consistent with a recent spike in similar "copyright troll" lawsuits, the motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography to coerce settlement payments despite serious problems with the underlying claims.&#13;</p>
<p>"Suing hundreds or even thousands of people together <i>en masse</i>, in states in which the vast majority of the accused downloaders appear to have no connection, amounts to a deliberate end-run around their due process rights," said EFF Senior Staff Attorney Matt Zimmerman. "The suits seem designed to ensure that few, if any, defendants will fight back, given the risk of shame from being publicly identified."&#13;</p>
<p>In the Texas case, Mick Haig Productions v. Does, EFF and Public Citizen are acting as counsel for the anonymous defendants after the court in the Northern District of Texas requested us to do so. In a brief filed Wednesday, EFF and Public Citizen opposed discovery into the Does' identities, arguing that almost all of the defendants appear to be outside the court's jurisdiction. Additionally, the case improperly joins hundreds of Does in the same case, jeopardizing their rights to individually defend themselves. Moreover, the lawsuit also flouts First Amendment protections mandating that a plaintiff demonstrate its case is viable and that defendants be given notice and opportunity to oppose efforts to reveal their identities.&#13;</p>
<p>"There is a real potential for embarrassment, or worse, if a pornographer mistakenly identifies an anonymous individual as having infringed its copyright by downloading one of its movies," said Paul Levy, attorney with Public Citizen Litigation Group. "To ensure justice for the individuals being accused, filmmakers claiming copyright infringement should be required to meet the same standards as defamation plaintiffs and others claiming the right to sue for anonymous speech online."&#13;</p>
<p>Also last week, EFF filed an amicus brief in a series of seven similar cases in the district court for the Northern District of West Virginia. In those cases, Time Warner Cable has moved to quash subpoenas seeking the identities of accused filed sharers, also arguing that the plaintiff film companies are attempting to abuse the discovery process. EFF's amicus brief -- filed Tuesday in support of Time Warner Cable -- argues that the plaintiffs should re-file their actions against each defendant individually and bring suit in courts that appear likely to be able to properly exercise personal jurisdiction.&#13;</p>
<p>"Some producers of adult content have apparently come to the conclusion that filing shoddy mass lawsuits under the assumption that the defendants will be too intimidated to fight back is a good business strategy," said Zimmerman. "It is our hope that courts will quickly see through these tactics and ensure that the right to a fair process is ensured for every defendant."&#13;</p>
<p>For the motion to quash filed in Texas:<br />
https://www.eff.org/files/filenode/uscg/opposition-mickhaig.pdf&#13;</p>
<p>For the amicus brief filed in West Virginia:<br />
https://www.eff.org/files/filenode/uscg/thirdworldmediavdoesamicus.PDF&#13;</p>
<p>For more on copyright trolls:<br />
https://www.eff.org/issues/copyright-trolls&#13;</p>
<p>Contact:&#13;</p>
<p>Matt Zimmerman<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
mattz@eff.org</p>
</div></div></div>Mon, 29 Nov 2010 21:21:48 +000062224 at https://www.eff.orgRebecca JeschkeA Field Guide to Copyright Trollshttps://www.eff.org/ar/deeplinks/2010/09/field-guide-copyright-trolls
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>With all of this talk about copyright trolls and spamigation, it is easy to get confused. Who is suing over copies of Far Cry and The Hurt Locker? Who is suing bloggers? Who is trying to protect their anonymity? Who is defending fair use? What do newspapers have to do with any of this? In order to cut through the confusion, here’s a concise guide to copyright trolls currently in the wild, with status updates.&#13;</p>
<p>Leading the pack for sheer numbers is a Washington, D.C., law firm calling itself the <b>U.S. Copyright Group</b> <a href="http://www.eff.org/uscg">(USCG),</a> that has filed several "John Doe" lawsuits in D.C., implicating well over 14,000 individuals. This firm has learned one lesson from the RIAA suits: the only group whose bottom line benefits from this kind of mass litigation is the lawyers. As we reported last week, several of the Does in these cases are fighting back in earnest, albeit with mixed results: on the one hand the judge in two of the cases has rejected various efforts to protect the anonymity of the Does, insisting that they cannot file papers anonymously. However, the same judge has <a href="http://www.eff.org/files/filenode/uscg/West%20Bay%20Order%20Redacted.pdf">issued</a> <a href="http://www.eff.org/files/filenode/uscg/Achte%20Neunte%20Order%20Redacted.pdf">orders</a> requiring USCG to justify suing two of the Does in the District of Columbia, as the Defendants claim to have no contacts with the District. Meanwhile, in South Dakota, ISP MidContinent Communications stood up for its customers and moved to quash an improperly issued subpoena for their identities. Last week, a federal judge <a href="http://arstechnica.com/tech-policy/news/2010/09/judge-puts-hammer-down-on-hurt-locker-p2p-subpoenas.ars">granted</a> that motion.&#13;</p>
<p><b>Righthaven LLC,</b> which has brought over 130 lawsuits in Nevada federal court claiming copyright infringement, has a different angle, preferring to acquire the copyrights rather than represent the owner. Righthaven focuses on news: it trolls by (a) scouring the Internet for newspaper stories (or parts thereof) originating with the <i>Las Vegas Review-Journal</i> that have been posted on blogs, forums and webpages, (b) acquiring the copyright to that particular newspaper story, and then (c) suing the poster for copyright infringement.&#13;</p>
<p>Righthaven demands sums up to $150,000, and uses the threat of these out-of-proportion damages to push defendants into quick settlements. <a href="http://www.vegastrademarkattorney.com/2010/08/avoiding-wrath-of-righthaven.html">Some</a> attorneys are advising bloggers to simply follow the rule laid down by the <i>Las Vegas Review-Journal</i>'s parent company and refrain from quoting anything more than the headline and first paragraph of news articles. Following this advice essentially allows a newspaper to decide what constitutes fair use, a term they are motivated to construe as narrowly as possible. Still <a href="http://www.patentlyo.com/patent/2010/09/zelnick-copyright-trolls.html">others</a> suggest that "the easiest way to avoid copyright infringement claims is to avoid copying," which is true only in the sense that the easiest way to avoid getting robbed is to have no possessions. Quoting, linking, aggregating all involve "copying" and all are integral to any number of perfectly legal creative, often non-commercial, uses of copyrighted works. Indeed, these uses are what makes the internet such a remarkable tool for fostering innovation.&#13;</p>
<p>Some Righthaven defendants are fighting back. For example, Democratic Underground, an independent discussion forum that was sued based on a 5-sentence excerpt a user posted on the forum. Democratic Underground filed its Answer and Counterclaim Monday; more on that <a href="http://www.eff.org/press/archives/2010/09/27">here</a>. And just last week, a judge in another Righthaven case strongly <a href="http://www.scribd.com/doc/37812449/Righthaven-v-Klerk">suggested</a> that a post on another site was protected by the legal doctrines of fair use and implied license.&#13;</p>
<p>Then there’s the relative newbies, such as <b>Lucas Entertainment</b> and <b>Mick Haig Productions,</b> both represented by attorney Evan Stone. Lucas has <a href="http://arstechnica.com/tech-policy/news/2010/08/53-gay-porn-pirates-now-facing-p2p-lawsuits.ars">sued</a> 53 BitTorrent users it alleged uploaded and downloaded the Kings of New York, a gay porn movie. After suing the users as “Does,” based on their IP addresses, it promptly subpoenaed the identities of people associated with those IP addresses. Unfortunately, many of those people, who are not comfortable being publicly identified in connection with pornography, will feel they have no choice but to settle rather than having their name publicly disclosed, no matter how meritorious their defenses. Mick Haig upped the ante by <a href="http://torrentfreak.com/producer-sues-bittorrent-users-but-doesnt-own-copyright-100924/">suing 670 BitTorrent users,</a> and <b>Larry Flynt Publications</b> has <a href="http://arstechnica.com/tech-policy/news/2010/09/porn-studios-borrowing-from-riaa-playbook-with-p2p-lawsuits.ars">gotten in on the act</a> as well. Subpoenas and threat letters are likely to follow soon.&#13;</p>
<p>These lawsuits reflect a business model that depends on two things:&#13;</p>
<ul><li><i>Cookie-cutter litigation tactics,</i> such as filing one lawsuit against thousands of legally unrelated people in a court convenient to the lawyers, even if it means the targets will have to defend themselves thousands of miles from home; or creating a “model pleading” which can be quickly revised with a few new facts to sue a new person. These tactics are crucial: they keep costs down, which in turn boosts profits.</li>
<li><i>Vulnerable defendants.</i> Many defendants will be eager to settle because they cannot afford the risk of an award of substantial damages if the case went to trial. Others may have strong defenses that would win at trial, but are unable to obtain counsel far from home (e.g., the defendants in the USCG cases, many of whom appear to be located thousands of miles away from the court where they’ve been sued), unable to afford counsel (e.g., the numerous nonprofits and individual bloggers targeted by Righthaven), or afraid of the consequence of having their personal information made public (e.g., the defendants targeted by Lucas Entertainment).</li>
</ul><p>EFF is trying to help by assisting people in finding lower cost or pro bono counsel, allowing people to fight back without the costs of defense bankrupting them. But in the meantime, these lawsuits are causing tremendous collateral damage — to the individuals targeted, to <a href="http://www.eff.org/cases/achte-neunte-v-does">due process,</a> and to the legal profession (which doesn’t need another example of unscrupulous lawyering). To be clear, no one is arguing that copyright owners don’t have a legal right to protect their works. But it’s quite another thing to game the legal system — and waste judicial resources, i.e., your tax dollars — to make a profit.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/achte-neunte-v-does">Achte-Neunte v. Does</a></div></div></div>Tue, 28 Sep 2010 15:07:26 +000061129 at https://www.eff.orgCommentaryCopyright TrollsFile SharingCorynne McSherryEFF Offers New Help for Targets of Predatory Copyright Infringement Lawsuitshttps://www.eff.org/ar/press/archives/2010/08/03
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Website Resources Explain Rights and Options for Those Caught in Movie-Downloading Shakedown</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>San Francisco - The Electronic Frontier Foundation (EFF) today published "U.S. Copyright Group v. the People," a comprehensive collection of resources designed to assist the thousands of individuals accused of online copyright infringement by a Washington, D.C., law firm calling itself the U.S. Copyright Group (USCG).&#13;</p>
<p>Earlier this year, the USCG filed "John Doe" lawsuits on behalf of seven filmmakers implicating well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person.&#13;</p>
<p>EFF's new webpage at http://www.eff.org/uscg has important information for subpoena targets, including explanations of the claims made by USCG, discussions of possible responses, and resources to help people find legal counsel and assistance.&#13;</p>
<p>"The people targeted in these mass lawsuits need good information about this situation and their options," said EFF Senior Staff Attorney Corynne McSherry. "USCG vs. the People provides answers to the many of the questions faced by anyone who learns their identity is being sought in connection with USCG's campaign or receives an intimidating letter from USCG. It also includes a list of attorneys who are interested in assisting."&#13;</p>
<p>"EFF has been concerned about USCG's lawsuit campaign since it first came to light this past spring," said EFF Legal Director Cindy Cohn. "USCG has ignored or sidestepped basic legal protections granted to all defendants. We believe it is misusing the lopsided nature of copyright law, which was written largely to target commercial infringers, to shake out settlements from ordinary people with few resources to defend themselves."&#13;</p>
<p>In June, EFF along with the ACLU and Public Citizen filed amicus briefs in these cases, arguing that USCG must comply with key legal rules that help protect individual rights. EFF and its co-amici explained that USCG had improperly joined together thousands of defendants, had sued those defendants in the wrong court, and had failed to meet the relevant First Amendment tests for requiring ISPs to identify anonymous customers. In response, a judge hearing some of the cases ordered that better notice be given to those who were targeted that outlined their rights and explained the legal process. The notice includes a link to some of the resources on EFF's website.&#13;</p>
<p>For USCG v. The People:<br />
http://www.eff.org/uscg&#13;</p>
<p>For the court-ordered notice:<br />
http://www.eff.org/files/filenode/uscg/40-2%20Exhibit%201.pdf&#13;</p>
<p>Contacts:&#13;</p>
<p>Corynne McSherry<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
corynne@eff.org&#13;</p>
<p>Cindy Cohn<br />
Legal Director<br />
Electronic Frontier Foundation<br />
cindy@eff.org</p>
</div></div></div>Wed, 04 Aug 2010 15:56:47 +000062208 at https://www.eff.orgRebecca JeschkeJudge Orders User-Friendly Notices for Does Targeted By USCG Suitshttps://www.eff.org/ar/deeplinks/2010/06/judge-orders-user-friendly-notices-does-targeted
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Thousands of ISP subscribers targeted in mass copyright infringement suits will have a better shot at defending themselves as a result of a hearing held today in Washington, D.C. EFF appeared at a hearing as a friend of the court, arguing that the suits improperly lump thousands of defendants together, a shortcut that deprives the defendants of fair access to individual justice.&#13;</p>
<p>The brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG), these "John Doe" lawsuits were filed on behalf of seven filmmakers and implicate well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." Time Warner Cable moved to quash subpoenas issued in two of the suits that sought the identities of the Doe defendants, and EFF, the ACLU and Public Citizen filed an amicus brief in support of the motion. EFF was invited to appear at the hearing, and told the judge that USCG did not offer enough evidence of a relationship between the defendants to justify suing them together, and that the evidence that the plaintiffs themselves submitted suggested the court did not have jurisdiction for people who are located across the country. Indeed, TWC noted that its records showed it had no subscribers in the District of Columbia. &#13;</p>
<p>During the hearing, Judge Rosemary M. Collyer said that while the plaintiffs had a right to pursue legitimate claims, she was also concerned that the defendants’ interests be protected as well, and that the defendants might not have a fair opportunity to raise legal objections. As a result, Judge Collyer ordered the plaintiffs, TWC and amici to work together to draft a notice that could be sent to subscribers whose information is sought. The notice is intended to help educate the defendants about the case and their legal options, such as the option to challenge jurisdiction. &#13;</p>
<p>EFF and its co-amici had urged the court to go a good deal further, because we believe the posture of these cases violated fundamental principles of fairness. However, we applaud the court’s effort to protect the defendants’ interests and, based on today’s hearing, we are hopeful that Judge Collyer will continue to seek to make these cases as fairer for the thousands of Doe defendants caught in the USCG dragnet.&#13;</p>
<p>The stakes are high for anyone identified in these cases. USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/achte-neunte-v-does">Achte-Neunte v. Does</a></div><div class="field__item odd"><a href="/ar/cases/uscg-v-people">USCG v. The People</a></div></div></div>Thu, 01 Jul 2010 02:46:30 +000061056 at https://www.eff.orgNews UpdateFair UseFile SharingCopyright TrollsCorynne McSherryEFF Argues Against Mass Copyright Infringement Lawsuits in Wednesday Hearinghttps://www.eff.org/ar/press/archives/2010/06/28
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Predatory Suits Improperly Lump Thousands of Defendants Together</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Washington, D.C. - On Wednesday, June 30, at 2:15 p.m., a federal court in Washington, D.C., will hear oral argument from the Electronic Frontier Foundation (EFF) about dividing up the mass copyright infringement lawsuits that improperly and unfairly target thousands of BitTorrent users.&#13;</p>
<p>A Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG) has filed "John Doe" lawsuits on behalf of seven filmmakers that implicate well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." EFF and co-amici Public Citizen and the American Civil Liberties Union (ACLU) Foundation contend that these suits improperly lump thousands of defendants together, a shortcut that deprives the defendants of fair access to individual justice. In court on Wednesday, EFF Senior Staff Attorney Corynne McSherry will argue that USCG has not offered enough evidence of a relationship between the defendants to justify suing them together.&#13;</p>
<p>The stakes are high for anyone identified in USCG's slipshod cases. USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for $1,500 - $2,500 per person. Earlier this month, EFF, the ACLU, and Public Citizen filed an amicus brief in three of these cases, outlining how the lawsuits flout the legal safeguards that protect individuals' rights.&#13;</p>
<p>WHAT:<br />
Achte-Neunte v. Does<br />
West Bay One v. Does&#13;</p>
<p>WHEN:<br />
Wednesday, June 30<br />
2:15 p.m.&#13;</p>
<p>WHERE:<br />
United States District Court for the District of Columbia, Courtroom 2<br />
333 Constitution Avenue, N.W.<br />
Washington, D.C. 20001&#13;</p>
<p>For more on these cases:<br />
http://www.eff.org/cases/achte-neunte-v-does&#13;</p>
<p>Contact:&#13;</p>
<p>Corynne McSherry<br />
Senior Staff Attorney<br />
Electronic Frontier Foundation<br />
corynne@eff.org</p>
</div></div></div>Mon, 28 Jun 2010 16:18:40 +000062203 at https://www.eff.orgRebecca JeschkeIPEC Releases "Strategic Plan on Intellectual Property Enforcement"https://www.eff.org/ar/deeplinks/2010/06/ipec-releases-strategic-plan-intellectual-property
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Yesterday, the Obama Administration's <a href="http://www.whitehouse.gov/omb/intellectualproperty/">Intellectual Property Enforcement Coordinator</a> (IPEC), Victoria Espinel, released the "<a href="http://www.whitehouse.gov/omb/asset.aspx?AssetId=2769">Joint Strategic Plan on Intellectual Property Enforcement</a>" that Congress ordered up when it created the IPEC position. The plan lays out 33 "enforcement action items" grouped in 6 categories, which are helpfully summarized in a <a href="http://www.eff.org/files/IPEC plan summary.pdf">two-page chart</a>. The plan is the result of a months-long public process in which <a href="http://www.eff.org/deeplinks/2010/03/public-interest-groups-call-ip-czar-get-priorities">EFF submitted comments</a>. &#13;</p>
<p>Overall, the plan is chiefly about what the federal government can do to better coordinate its own enforcement efforts over a whole host of areas, such as blocking trafficking in counterfeit medicines, rooting out infringing software among federal contractors, and improving communication between federal and state enforcement agencies. Many of these efforts are laudable, aimed at increasing the efficiency and transparency of our government agencies. And the plan explicitly recognizes the importance of fair use and balance in the U.S. legal system. &#13;</p>
<p>With respect to the specific action items, <a href="http://techdirt.com/articles/20100622/1142419921.shtml">TechDirt</a> has done a nice job summarizing some of the more controversial recommendations. The plan embraces ACTA, which may be troubling depending on whether that proposed agreement is revised to "<a href="http://www.publicknowledge.org/node/3192">ditch the crazy stuff</a>." It also calls for the feds to continue "facilitating cooperation" among "the business community to reduce Internet piracy." And there is quite a bit of emphasis on enforcement against "foreign pirate websites," without much specificity about what, exactly, "enforcement" might mean in this context. &#13;</p>
<p>But from EFF's perspective, the most important aspect of the plan is the one that has just begun: a 120-day "comprehensive review of existing intellectual property laws to determine needed legislative changes."&#13;</p>
<blockquote><p>The IPEC will initiate and coordinate a process, working with Federal agencies, to review existing laws—whether they impose criminal and/or civil liability—to ensure that they are effectively reaching the appropriate range of infringing conduct, including any problems or gaps in scope due to changes in technologies used by infringers. ... The initial review process will conclude within 120 days from the date of the submission of this Joint Strategic Plan to Congress. The Administration, coordinated through the IPEC, will recommend to Congress any proposed legislative changes resulting from this review process.</p>
</blockquote>
<p>This is the action item to watch. Remember, the last time the feds did a "comprehensive review" of <a href="http://www.eff.org/issues/intellectual-property/the-term">intellectual property</a>, we got the infamous <a href="https://www.eff.org/files/filenode/DMCA/NTIA%20DMCA%20White%20Paper.pdf">1995 IITF "White Paper,"</a> the document that was the genesis of the <a href="http://www.eff.org/wp/unintended-consequences-under-dmca">anti-circumvention provisions of the DMCA</a>. Let's hope the IPEC "review" yields something more positive. &#13;</p>
</div></div></div>Wed, 23 Jun 2010 21:09:10 +000061045 at https://www.eff.orgCommentaryFair UseInternationalFile SharingCreativity & InnovationFred von LohmannEFF Launches Subpoena Defense List to Help Targets of Movie-Downloading Lawsuitshttps://www.eff.org/ar/deeplinks/2010/06/eff-launches-subpoena-defense-list-help-targets
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>We've heard from many people who have been distressed to learn that their identity is being sought by the US Copyright Group, which purportedly represents various independent filmmakers, for allegedly having downloaded a movie such as "Far Cry" over BitTorrent. These people may want to contact an attorney in their state or Washington D.C. to discuss their individual circumstances and to decide how to proceed. EFF cannot advise each of these defendants, but we have assembled <a href="https://www.eff.org/issues/file-sharing/subpoena-defense">a list of attorneys</a> who are willing to help advise and possibly represent subpoena targets. &#13;</p>
<p>The attorneys on the Subpoena Defense list are not affiliated with the Electronic Frontier Foundation and by offering their names, EFF does not intend to endorse their services. Fees are negotiable on a case by case basis. Attorneys who are interested in adding their names to the Subpoena Defense list should contact Rebecca Reagan at rsreagan@eff.org with their full names, the email address that they would prefer to see listed, and the states in which they are licensed to practice law.&#13;</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/uscg-v-people">USCG v. The People</a></div></div></div>Fri, 11 Jun 2010 17:05:33 +000061037 at https://www.eff.orgAnnouncementFair UseFile SharingDMCA RulemakingCopyright TrollsEva GalperinEFF Asks Judges to Quash Subpoenas in Movie-Downloading Lawsuitshttps://www.eff.org/ar/press/archives/2010/06/02
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Predatory Copyright Infringement Cases Violate Rights of Thousands</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Washington, D.C. - The Electronic Frontier Foundation (EFF) asked judges in Washington, D.C., Wednesday to quash subpoenas issued in predatory lawsuits aimed at movie downloaders, arguing in friend-of-the court briefs that the cases, which together target several thousand BitTorrent users, flout legal safeguards for protecting individuals' rights. Public Citizen and the American Civil Liberties Union (ACLU) Foundation joined EFF on the briefs filed Wednesday.&#13;</p>
<p>The lawsuits are the brainchild of a Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG). USCG investigators have identified IP addresses they allege are associated with the unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." To date, USCG has filed seven "John Doe" lawsuits in D.C., implicating well over 14,000 individuals, and has issued subpoenas to ISPs seeking the names and addresses of the subscribers associated with those IP addresses. Several ISPs have complied, but Time Warner Cable moved to quash the three subpoenas it received, arguing that USCG is abusing the discovery process.&#13;</p>
<p>In briefs filed in support of the cable giant, EFF says the John Doe defendants are being deprived of a fair chance to defend themselves by the strategies adopted by the USCG.&#13;</p>
<p>"By requiring those sued to defend these cases in D.C., regardless of where they live, and by having thousands of defendants lumped into a single case, the USCG has stacked the deck against the defendants," said EFF Senior Staff Attorney Corynne McSherry. "In addition, the First Amendment mandates that each defendant be given notice and opportunity to quash a subpoena and that the plaintiff offer sufficient evidence of infringement about each defendant individually."&#13;</p>
<p>"If USCG wants to sue thousands of people, it needs to give each defendant a fair chance to fight the accusations," added EFF Civil Liberties Director Jennifer Granick. "Instead, USCG is taking shortcuts that will result in innocent people getting tangled up in the dragnet."&#13;</p>
<p>USCG's strategy appears to be to threaten a judgment of $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial infringement -- in order to pressure the alleged infringers to settle quickly for about $2,500 per person. USCG unapologetically explains this strategy on its website: "As a practical matter each individual infringer lacks the assets, net worth and earning capacity to make civil prosecution practical...until the SaveCinema.org efforts of the US Copyright Group." USCG has also said it plans to target thousands more individuals for legal action in the coming months.&#13;</p>
<p>"We've long been concerned that some attorneys would attempt to create a business by cutting corners in mass copyright lawsuits against fans, shaking settlements out of people who aren't in a position to raise legitimate defenses and becoming a category of 'copyright trolls' to rival those seen in patent law," said EFF Legal Director Cindy Cohn. "We're asking the court to step in now and force USCG to follow the rules that apply in all other cases."&#13;</p>
<p>For the full amicus brief:<br />
http://www.eff.org/files/filenode/uscg_does/Achte-Neunte%20Final%20Brief.pdf&#13;</p>
<p>For more on this case:<br />
http://www.eff.org/cases/achte-neunte-v-does&#13;</p>
<p>Contact:&#13;</p>
<p>Corynne McSherry<br />
IP Director<br />
Electronic Frontier Foundation<br />
corynne@eff.org</p>
</div></div></div>Thu, 03 Jun 2010 14:01:44 +000062200 at https://www.eff.orgRebecca JeschkeCreators Must Move Beyond Suing the Audiencehttps://www.eff.org/ar/deeplinks/2010/05/creators-must-move-beyond-suing-audience
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The file-sharing public faces yet another wave of predatory litigation, this time from the so-called US Copyright Group ("USCG"), which is suing BitTorrent users on behalf of various independent filmmakers. The Hollywood Reporter <a href="http://thresq.hollywoodreporter.com/2010/03/new-litigation-campaign-targets-tens-of-thousands-of-bittorrent-users.html">reports</a> that more than 20,000 individuals have been sued, with more suits to come, and the producers of the Oscar-winning <em>The Hurt Locker</em> have also signed up with the USCG to go after BitTorrent users.&#13;</p>
<p>USCG's infringement lawsuits are "Doe suits," much like the cases in the infamous <a href="http://www.eff.org/riaa-v-people">Recording Industry Association of America litigation campaign</a>. Just as the RIAA did for years, the US Copyright Group uses an investigator to identify IP addresses associated with allegedly infringing downloads, files copyright infringement suits against anonymous Does, and then tries to hijack the subpoena process to get ISPs to match the IP addresses to actual names. (We'll have more to say in a later post about USCG's abuse of the legal process.)&#13;</p>
<p>Veterans of the file-sharing wars know that this story has no happy ending. The filmmakers — perhaps promised an alternative revenue stream in the form of settlements — are in for a bumpy ride. First, we'll see an abuse of the legal process to identify anonymous Internet users. Already, ISP Time Warner Cable (TWC) has <a href="http://arstechnica.com/tech-policy/news/2010/05/time-warner-cable-tries-to-put-brakes-on-massive-piracy-case.ars">pushed back</a> against USCG's demand for hundreds of subscriber names and IP address lookups on short notice. If TWC succeeds — and it should — it will help put the brakes on USCG's effort to cut their own costs by serving mass subpoena requests. In other words, the lawsuits could get a little more expensive. Then, once identities are revealed, we'll inevitably start <a href="http://arstechnica.com/tech-policy/news/2010/05/far-cry-innocence.ars">hearing about</a> the "dolphins in the driftnet" — people who are improperly targeted but nonetheless forced to settle or defend. Meanwhile, despite the flurry of legal action, BitTorrent use will continue unabated and only the lawyers will see any increase in their bottom line.&#13;</p>
<p>This much should be abundantly clear by now: creators must move beyond suing the audience. File-sharers are <a href="http://www.boingboing.net/2010/05/18/voltage-pictures-pre.html">characterized</a> as shallow thieves, when in reality they're just fans who are using one of the most efficient technologies for distribution ever invented to explore creative works in the most convenient way possible. The majority of these fans would like to live in a world where there's an efficient, effective, modern framework for compensating the creators. That framework will be built through innovation and experimentation — not litigation.&#13;</p>
<p>Happily, some filmmakers and innovators are already working hard to develop better, more flexible models.&#13;</p>
<p>After initially failing to attract a distributor for the feature film <em>Four Eyed Monsters</em> — despite success at a number of festivals — filmmaker Arin Crumley and co-director Susan Buice embraced alternative, Internet-driven distribution strategies including in-depth "making-of" podcasts, fan-driven screening requests, and the posting of the film in full on YouTube. Crumley is hoping to embed the successful elements of these various experiments into OpenIndie, a website in beta that seeks to <a href="http://www.youtube.com/watch?v=V3X0-cyNDiA">provide</a> creators with a new way to distribute and screen films.&#13;</p>
<p>OpenIndie will allow filmmakers to post trailers and information about their films to the site, while film buffs can use the site to request screenings of films they like. Filmmakers can then get a roster of their fans, giving them the ammo they need to convince theaters to show the film in regions where there's guaranteed interest. OpenIndie also plans to make it easier for superfans to host a screening, collect donations, and offer merchandise on behalf of the filmmaker, creating a new level of creator-audience interaction and support that capitalizes elegantly on unique aspects of the film experience unavailable through infringement: seeing a film with others, being one of the first to support quality creative work, and so on. &#13;</p>
<p>Filmmaker and animator Nina Paley is another noteworthy creator finding success through alternative distribution of her animated feature <em>Sita Sings the Blues</em>. After critical acclaim, and after having to pay crushing licensing fees to copyright owners (since she incorporated blues songs originally written the 1920s into the film), Paley avoided traditional film distribution deals and instead released the film under a <a href="http://creativecommons.org/about/licenses/#by-sa">Creative Commons Attribution-Share Alike license</a>, writing:</p>
<blockquote><p>You don't need my permission to copy, share, publish, archive, show, sell, broadcast, or remix Sita Sings the Blues. Conventional wisdom urges me to demand payment for every use of the film, but then how would people without money get to see it? How widely would the film be disseminated if it were limited by permission and fees? Control offers a false sense of security. The only real security I have is trusting you, trusting culture, and trusting freedom.</p></blockquote>
<p>And how successful has <em>Sita Sings the Blues</em> actually been? The QuestionCopyright.org site has been <a href="http://questioncopyright.org/sita_distribution">tracking the results</a> of her alernative distribution project and summarizes the findings thusly:</p>
<blockquote><p>Best of all, her income stream is fairly steady. This is the opposite of the traditional "burst and fade" distribution model that so many works endure, dragged out of circulation prematurely to avoid competing with new releases from the same publisher. Because Nina's film is audience-distributed, it's in circulation forever, whenever and wherever people want to see it. And all those audience members are potential customers and donors, as the financial results bear out.</p></blockquote>
<p>A less measurable factor than "profit" that many passionate creators will nonetheless find to be important is the emotional, creative impact of embracing alternative distribution. According to Nina Paley, the success and thrill of <em>Sita Sings the Blues</em> <a href="http://www.techdirt.com/articles/20100329/0921178761.shtml">can be felt</a> in ways beyond the business model built around the work itself.&#13;</p>
<p>Overall, a prevalent theme for those leading the way in getting paid for creative work is an acceptance of copying as an integral aspect of modern life that <a href="http://www.techdirt.com/blog.php?tag=business+models&amp;edition=techdirt">gives creators unprecedented advantages and flexibility</a>. In a recent interview, author (and former EFF staffer) Cory Doctorow said:</p>
<blockquote><p>As a practical matter, we live in the 21st century and anything anybody wants to copy they will be able to copy. If you are building a business model that says that people can only copy things with your permission, your business is going to fail because whether or not you like it, people will be able to copy your product without your permission. The question is: what are you going to do about that? Are you going call them thieves or are you going to find a way to make money from them?</p></blockquote>
<p>And to that end, innovative sites are stepping in to give creators new tools and diverse choices for fundraising, like Kickstarter's development of the <a href="http:/www.kickstarter.com/projects/by/popular?category=Film/Video&amp;time=all">crowdfunding</a> concept, and Flattr's experimentation with <a href="http://flattr.com/">social micropayments</a>. These services seek to capitalize on the deep, direct engagement made possible by the Internet — enlisting the audience, rather than attacking it.&#13;</p>
<p>Independent filmmaking is extraordinarily challenging, and part of the challenge is getting compensated for your hard work. But the lessons from litigation in the music space could not be more clear: suing your fans is no way to meet that challenge. We urge filmmakers to learn from the creators profiled above, experiment with the new tools at their disposal, and to lead the way in finding better way forward.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/uscg-v-people">USCG v. The People</a></div></div></div>Fri, 28 May 2010 22:46:13 +000061030 at https://www.eff.orgCommentaryFair UseFile SharingCreativity & InnovationCopyright TrollsRichard EsguerraEFF Seeks Attorneys to Help Alleged Movie Downloadershttps://www.eff.org/ar/deeplinks/2010/05/eff-seeks-attorneys-help-alleged-movie-downloaders
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Are you an attorney licensed to practice law in the United States? If you are, EFF needs your help to fight spam-igation.&#13;</p>
<p>The U.S. Copyright Group has quietly targeted 50,000 Bit Torrent users for legal action in federal court in Washington DC. The defendants, all Does, are accused of having downloaded independent films such as "Far Cry," "Steam Experiment," and "Uncross the Stars" without authorization. U.S. Copyright Group has recently announced that it will also be targeting unauthorized downloaders of the film "Hurt Locker." News reports suggest that the attorneys bringing these suits are not affiliated with any major entertainment companies, but are instead intent on building a lucrative business model built from collecting settlements from the largest possible set of individual defendants.&#13;</p>
<p>The lawsuits proceed similarly to the RIAA lawsuits against unauthorized music downloaders: US Copyright Group files a copyright infringement suit in federal court in Washington DC, against thousands of Does, identified by IP address. Then it presents ISP's with the list of IP's and dates and subpoenas the billing address of the user who had that IP at that date. The ISP's then contact then contact their customers, inform them of the subpoena, and give them an opportunity to file a motion to quash.&#13;</p>
<p>In the event that no motion to quash is filed, the ISP gives up the identity of the user. US Copyright Group's attorneys then contact the user and offer a settlement, usually starting at $2500.&#13;</p>
<p>EFF is seeking as many attorneys as possible to advise the targets of these lawsuits and, where appropriate, file motions to quash. Respondents' contact information would be added to a website that will act as a resource for the targets of these lawsuits. &#13;</p>
<p>If interested, please contact Rebecca Reagan at rsreagan@eff.org with your contact information or the contact information for your firm, and the states in which you are licensed to practice law.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/uscg-v-people">USCG v. The People</a></div></div></div>Wed, 19 May 2010 23:19:10 +000061024 at https://www.eff.orgAnnouncementFair UseFile SharingCopyright TrollsEva Galperin50,000 New Lawsuits Against Movie Downloadershttps://www.eff.org/ar/deeplinks/2010/03/50-000-i-new-i-lawsuits-against-movie-downloaders
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>According to <a href="http://thresq.hollywoodreporter.com/2010/03/new-litigation-campaign-targets-tens-of-thousands-of-bittorrent-users.html">The Hollywood Reporter</a>, a group known as the "U.S. Copyright Group" has quietly targeted 20,000 Bit Torrent users for legal action in federal court in Washington, DC. The targets are accused of having downloaded independent films, including "Steam Experiment," "Far Cry," "Uncross the Stars," "Gray Man" and "Call of the Wild 3D," without authorization. The group plans to target 30,000 more individuals for legal action in the coming months. &#13;</p>
<p>This time, the lawyers involved are being explicit about their motivations: it's all about the money. "We're creating a revenue stream and monetizing the equivalent of an alternative distribution channel," said one of the attorneys involved. The cases are taken on a contingency basis, designed so that quick settlements will prove lucrative for both the firm and the copyright owners involved. &#13;</p>
<p>The attorneys involved are reportedly relying on technology provided by Guardaley IT that claims to enable real-time monitoring of movie downloads on torrents. The IP addresses and information gathered using this technology are then used to file "John Doe" lawsuits and issue subpoenas to ISPs seeking the names and addresses of subscribers associated with those IP addresses. Settlement demands are then sent. &#13;</p>
<p>This is not the first time we've seen mass litigation (a.k.a. "spam-igation") used as a profit-center—<a href="http://www.eff.org/press/archives/2005/11/30">DirecTV</a> pioneered that tactic by sending demand letters to more than 170,000 Americans accused of satellite piracy. And the <a href="http://www.eff.org/wp/riaa-v-people-years-later">major record labels</a> followed up by targeting more than 30,000 people for legal actions between 2003-08. &#13;</p>
<p>If this story is correct, it's the latest evidence that copyright law has become unmoored from its foundations. Copyright should help creators get adequately compensated for their efforts. Copyright should not line the pockets of copyright trolls intent on shaking down individuals for fast settlements a thousand at a time.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar/cases/uscg-v-people">USCG v. The People</a></div></div></div>Tue, 30 Mar 2010 22:23:11 +000060974 at https://www.eff.orgCommentaryFair UseFile SharingCopyright TrollsFred von LohmannMusic Journalism is the New Piracyhttps://www.eff.org/ar/deeplinks/2010/02/musicblogocide
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Imagine you're a music journalist who maintains a blog. You've just found a great, new, virtually-unknown artist that you want to tell the world about. How can you do so, in a way that is simple and convenient for your readers, but does not place you or your blog's host at risk of being sued?&#13;</p>
<p>Thanks to the increasingly aggressive copyright-enforcement tactics of the music industry, this has become a startlingly complicated question with no good answer.&#13;</p>
<p>In the latest signal of this conundrum, at least six music blogs were <a href="http://arstechnica.com/tech-policy/news/2010/02/the-day-the-music-blogs-died-behind-googles-musicblogocide.ars">deleted</a> last week by Blogger due to copyright complaints. It's uncertain who made the accusations that lead to the deletions, but the most likely culprit is the <a href="http://en.wikipedia.org/wiki/International_Federation_of_the_Phonographic_Industry">International Federation of the Phonographic Industry (IFPI)</a>, a copyright-enforcement organization which had previously filed copright takedown notices against some of the targeted blogs.&#13;</p>
<p>Although the takedowns were made in the name of stopping piracy, the deleted blogs do not appear to have been hotbeds of illegal file-sharing. Indeed, some had operated for years and acquired a serious and substantial readership. Like many music blogs and magazines, they mostly posted reviews of artists, albums and concerts. &#13;</p>
<p>In at least one case, IFPI's accusations of copyright infringement were almost certainly incorrect. Bill Lipold, author of the deleted <a href="http://www.cleveland.com/popmusic/index.ssf/2010/02/i_rock_cleveland_is_shut_down.html">I Rock Cleveland</a>, has outlined in painstaking detail the ways in which he received <a href="http://www.google.com/support/forum/p/blogger/thread?tid=4ba979f2d9e7b6d9&amp;hl=en">explicit permission</a> to post every file on his blog, including ones which were later accused of infringement and forcibly removed. In one case, the band's publicist wrote of the takedown, "Just so you know, this is none of our doing...apparently, DMCA operate on their own set of odd rules, as they even requested that the (band's) official blog remove the song....What a headache..."&#13;</p>
<p>In cases like this, attacks on music blogs seem to be the latest example of the widening disconnect between the goals of the music industry's promotional wing and its enforcement wing. Smart musicians and promoters understand that the Net is a powerful promotional tool, and know that sharing an artist's music is the best way to earn new fans. The IFPI, on the other hand, writes clearly in its <a href="http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=27000">takedown notices</a> that "Our top priority is to prevent the continued availability of the IFPI Represented Companies' content on the internet." We've already seen this divergence of interests play out in recent fiascos surrounding bands like <a href="http://www.eff.org/deeplinks/2010/01/ok-stop-emi-puts-stop-sharing-princes-viral-video">OK Go</a> and <a href="http://pitchfork.com/news/34490-death-cab-caught-in-warneryoutube-fight/">Death Cab For Cutie</a>. And the television industry has seen similar problems in its attacks on <a href="http://www.techdirt.com/articles/20091229/1920547542.shtml">YouTube</a>.&#13;</p>
<p>In other cases, it appears that the bloggers may have posted or linked to copyrighted material without permission. But, as targeted blogger Patrick Duffey <a href="http://poptarts.tumblr.com/post/382580784/theunderrated-stereoactivenyc-soupsoup">explains</a>, it's often next to impossible to know exactly which content is being accused of infringement:&#13;</p>
<blockquote><p>
In their DMCA take down letters they never inform you what the infringing mp3’s are, forcing the writer to take down ALL the mp3’s in the offending post whether they have the permission to post them or not... If they had just included what the offending mp3’s were they could have avoided all of these headaches and bad press and we could have kept on going like any other day.
</p>
</blockquote>
<p>Living Ears, another targeted blog, <a href="http://www.livingears.com/2010/02/where-is-livingears-blogspot-com-blogocide2k10/">echoes</a> those sentiments:&#13;</p>
<blockquote><p>
One problem with these notices is that they do not mention infringing files by name. When I post the playlist from Scene Not Heard and link to a couple of tracks, if I receive a DMCA notice, how can you tell which file is to be deleted?
</p>
</blockquote>
<p>Targeted bloggers need to know these details, not only so that they can remove the file if it's indeed infringing, but so that they can file a DMCA counter-notice in the event that the file is not infringing.&#13;</p>
<p>Ordinarily, the party issueing the takedown notice would be required by US copyright law to specify which content is being accused. But, as an international organization headquartered in London, IFPI is arguing that it doesn't even need to play by the USA's rules. "We neither admit nor accept," they <a href="http://www.chillingeffects.org/dmca512c/notice.cgi?NoticeID=27000">write</a>, "...that Google is entitled to be served a notice in compliance with the DMCA." Translation: IFPI is essentially threatening to sue Google under some unspecified foreign law — presumably one which lacks even the modest safe-harbor provisions available in the USA. It's no wonder Google felt the need to take drastic action to avoid liability, even at the expense of the resulting headaches and bad press.&#13;</p>
<p>By now, the affected blogs have mostly migrated elsewhere — in most cases to software like <a href="http://wordpress.org/">Wordpress</a>, deployed on smaller and less well-known hosting services. While this will buy them some time, these smaller hosting services are just as vulnerable as Google is to attacks by the IFPI and their ilk. In fact, most smaller hosts are likely to be even less helpful to bloggers than Google has been, since they tend to lack Google's legal resources and PR imperatives. &#13;</p>
<p>That being said, there are steps that music bloggers can take to protect themselves. Though EFF hasn't created resources specifically for music bloggers, many of the suggestions made in our <a href="http://www.eff.org/issues/intellectual-property/guide-to-youtube-removals">Guide To YouTube Removals</a> and <a href="http://www.eff.org/wp/gripe-or-parody-sites">Guide To Avoiding Gripes About Your Gripe (or Parody) Site</a> will be relevant. Note especially this list of <a href="http://whdb.com/2007/free-speech-hosting-11-web-hosts-that-wont-dump-you-at-the-first-sign-of-controversy/">web-hosts</a> that have been known to show some spine when faced with legal threats over their customers' content. And, of course, all current users of Blogger should make regular use of Blogger's <a href="http://bloggerindraft.blogspot.com/2008/06/new-feature-import-and-export.html">"export" feature</a> to back-up their work.&#13;</p>
<p>If this game of whack-a-mole seems familiar, that's because it is. The same copyright-enforcement machine that was originally designed to fight music piracy, having largely failed at that goal, has now been turned on music journalists, and — in some cases — musicians themselves. It's just the latest example of how legitimate speech and innovation will continue to be endangered until either Congress or the music industry takes serious steps to fix things.&#13;</p>
<p><em>Update, Feb 24: EFF has published some <a href="http://www.eff.org/deeplinks/2010/02/mp3-bloggers-protecting">Practical Advice for Music Bloggers Worried About DMCA Takedown Censorship</a>.</em></p>
</div></div></div>Tue, 16 Feb 2010 21:18:59 +000060925 at https://www.eff.orgCommentaryDMCAFair UseInternationalFile SharingNo Downtime for Free SpeechBloggers' RightsTim JonesHOWTO: Thrive as a Musician Without Suing Your Fanshttps://www.eff.org/ar/deeplinks/2010/01/howto-thrive-musician-without-suing-your-fans
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>TechDirt's Mike Masnick is at the <a href="http://www.midem.com/">Midem</a> music industry conference in Cannes this week. He put together a fantastic memo to the International Association of Entertainment Lawyers: <a href="http://www.techdirt.com/articles/20091119/1634117011.shtml">"The Future Of Music Business Models (And Those Who Are Already There)"</a>.&#13;</p>
<p>Masnick writes that the mainstream entertainment industry's formula for contending with the Internet — desperately trying to invent "new copyright laws or new licensing schemes or new DRM or new lawsuits or new ways to shut down file sharing" — is counterproductive.&#13;</p>
<blockquote><p>
However, there is another solution. Stop worrying and learn to embrace the business models that are already helping musicians make plenty of money and use file sharing to their advantage, even in the absence of licensing or copyright enforcement.&#13;</p>
<p>In simplest terms, the model can be defined as:&#13;</p>
<p>Connect with Fans (CwF) + Reason to Buy (RtB) = The Business Model
</p>
</blockquote>
<p>He lists a dozen artists who've done well for themselves through various permutations of this model. Everyone knows about the efforts of big names like Trent Reznor and Radiohead, but Mike also draws attention to less-famous success stories like Josh Freese, Jill Sobule, Corey Smith, Jonathan Coulton, Moto Boy, Amanda Palmer, Matthew Ebel, Moldover and K-Os.&#13;</p>
<blockquote><p>
As you look through all of these, some patterns emerge. They're not about getting a fee on every transaction or every listen or every stream. They're not about licensing. They're not about DRM or lawsuits or copyright. They're about better connecting with the fans and then offering them a real, scarce, unique reason to buy -- such that in the end, everyone is happy. Fans get what they want at a price they want, and the musicians and labels make money as well.
</p>
</blockquote>
<p>These stories stand in stark contrast to the problems that major labels' copyright-enforcement efforts can cause for their artists. Just last week, we noted how even talented and popular bands like <a href="http://www.eff.org/deeplinks/2010/01/ok-stop-emi-puts-stop-sharing-princes-viral-video">OK Go</a> and <a href="http://pitchfork.com/news/34490-death-cab-caught-in-warneryoutube-fight/">Death Cab For Cutie</a> have seen their promotion actively undercut by their own labels' copywars. &#13;</p>
<p>The memo is a great roundup of clever new business models that music fans and and aritsts alike will find worth <a href="http://www.techdirt.com/articles/20091119/1634117011.shtml">reading</a>.&#13;</p>
</div></div></div>Mon, 25 Jan 2010 21:52:08 +000060907 at https://www.eff.orgCommentaryFair UseDRMFile SharingCreativity & InnovationTim JonesMPAA and RIAA Seek Net Neutrality Copyright Loopholehttps://www.eff.org/ar/deeplinks/2010/01/mpaa-and-riaa-seek-net-neutrality-copyright-loopho
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week the <a href="http://fjallfoss.fcc.gov/ecfs/document/view?id=7020375849">MPAA</a> and <a href="http://fjallfoss.fcc.gov/ecfs/document/view?id=7020376700">RIAA</a> submitted their comments in the FCC's net neutrality proceeding. As anticipated in <a href="http://www.eff.org/files/filenode/nn/EFFNNcomments.pdf">EFF's comments</a>, the big media companies are <a href="http://www.computerworld.com/s/article/9145198/RIAA_tells_FCC_ISPs_need_to_be_copyright_cops">pushing for a copyright loophole</a> to net neutrality. They want to be able to pressure ISPs to block, interfere with, or otherwise discriminate against your perfectly lawful activities in the course of implementing online copyright enforcement measures. &#13;</p>
<p>Of course, the MPAA and RIAA couch this in language intended to sound inoffensive. The RIAA says "the perfect should not be the enemy of the good" and "justice often takes too long." The MPAA chimes in that "it is essential that government policies explicitly permit—and encourage—ISPs to work with content creators to utilize the best available tools and technologies to combat online content theft."&#13;</p>
<p>But here's how it would work in practice. The <a href="http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.pdf">proposed FCC net neutrality principles</a> include a loophole for "reasonable network management," which is defined to include "reasonable practices employed by a provider of broadband Internet access service to...(iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content." That means that so long as your ISP claims that it's trying to prevent copyright infringement, it's exempted from the net neutrality principles and can interfere with your ability to access lawful content, use lawful devices, run lawful applications, or access lawful services. &#13;</p>
<p>This is not about protecting copyright infringers—the FCC's proposed net neutrality principles expressly do not apply to unlawful content or unlawful transmissions. So you don't need a "reasonable network management" loophole to go after illegal conduct. The loophole that the RIAA and MPAA are after is about giving the green light to overbroad copyright enforcement measures that inflict collateral damage on innocent conduct. &#13;</p>
<p>The proposed copyright loophole is reminiscent of the RIAA's response when asked about innocent people mistakenly sued for file sharing: "<a href="http://www.post-gazette.com/columnists/20030914edroddy0914p1.asp">When you go fishing with a driftnet, sometimes you catch a dolphin</a>." Unlike the MPAA and RIAA, EFF doesn't think that ISPs should get a free pass for sideswiping innocent activities if they implement shoddy copyright enforcement systems. And neither do <a href="http://fjallfoss.fcc.gov/ecfs/document/view?id=7020374255">Public Knowledge, the Consumer Electronics Association, CCIA, NetCoalition, or the Home Recording Rights Coalition</a>.&#13;</p>
<p>Allowing ISPs to jeopardize perfectly legal activities in the name of "copyright enforcement" is a bad idea. <a href="http://www.realnetneutrality.org/">Let the FCC know</a> that you oppose any copyright loophole that would allow the RIAA and MPAA to pressure ISPs into catching your "dolphins" in their poorly designed fishing nets. &#13;</p>
</div></div></div>Wed, 20 Jan 2010 22:18:28 +000060900 at https://www.eff.orgLegal AnalysisFair UseFile SharingNet NeutralityFred von LohmannMost Pirated Movie of 2009 ... Makes Heaps of Moneyhttps://www.eff.org/ar/deeplinks/2009/12/most-pirated-movie-makes-heaps-money
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>According to <a href="http://torrentfreak.com/top-10-most-pirated-movies-of-2009-091220/">TorrentFreak</a>, last summer's Star Trek movie was the "most pirated movie of 2009." So it seems that Paramount Pictures was prescient when it gave <a href="http://techdirt.com/articles/20090922/1709526287.shtml">testimony</a> before the FCC that used Star Trek as an illustrative example of how "Internet piracy" is poised to devastate Hollywood and (though the nexus here is <a href="http://www.publicknowledge.org/node/2638">less than clear</a>) undermine residential broadband in America. &#13;</p>
<p>Funny thing is, <a href="http://www.the-numbers.com/movies/2009/TRK11.php">Star Trek</a> is on course to make more than $100 million in profits.&#13;</p>
<p>Here's the <a href="http://www.the-numbers.com/movies/2009/TRK11.php"> financial breakdown</a>, courtesy of <a href="http://www.the-numbers.com/">The Numbers.com</a>, which gathers financial data for movie industry analysts:&#13;</p>
<p>Production costs: $140m<br />
Promotion costs: ~$100m<br />
Global box office revenues: $385m<br />
U.S. TV syndication rights: $30m<br />
DVD &amp; Bluray revenues (anticipated, based on <a href="http://www.the-numbers.com/interactive/newsStory.php?newsID=4663">sales and rentals</a> since Nov. 2009): &gt;$100m&#13;</p>
<p>Based on these figures, film industry analyst Bruce Nash at The Numbers predicts a net profit to Paramount of more than $100m on the movie. Not bad for the "most pirated movie of 2009," which was camcorded and widely released on the Internet within days of theatrical release.&#13;</p>
<p>This is just one data point suggesting that Hollywood's hue and cry about "Internet piracy" should be taken with a grain of salt. Other data points include Hollywood's <a href="http://www.guardian.co.uk/film/2009/dec/08/us-box-office-record">record breaking box office</a> results for 2009 (in the midst of a recession!). And the fact that <a href="http://techdirt.com/articles/20091101/1818186751.shtml">twice as many movies were released in 2009, as compared to 2004</a>. (There is also far more new music being released today than 10 years ago, thanks to new digital technologies.)&#13;</p>
<p>The goal of copyright is to encourage creativity. As 2009 comes to a close, there is no evidence out there that "Internet piracy" is leaving us with fewer creators or fewer copyrighted works, even if you limit yourself to considering works being created by "professionals" employed by movie studios. And once you factor in all the new, noncommercial or semi-pro creators who have been empowered by the very same Internet technologies that Hollywood is blaming for "piracy," well, it seems clear that creativity is alive and well, and that Hollywood's demands for drastic overhauls of copyright law and broadband policy are disconnected from reality. &#13;</p>
<p>And, importantly, some of what Hollywood calls "piracy" is actually the result of its <a href="http://www.thewrap.com/blog-entry/separating-movie-pirates-movie-customers-10506">stubborn refusal</a> to give legitimate customers what they want, whether it's <a href="http://www.eff.org/deeplinks/2009/08/judge-rules-against-realdvd">home media servers</a> for their DVDs, the right to rip DVDs to make <a href="http://www.eff.org/deeplinks/2009/05/why-video-remix-crea">noncommercial remixes</a>, or new options to <a href="http://www.eff.org/deeplinks/2008/10/hollywood-menaces-dvd-rental-kiosks">rent DVDs</a>. (Or new video-on-demand offerings unless the FCC first approves "<a href="http://www.publicknowledge.org/issues/soc">selectable output control</a>" DRM restrictions for our TVs.)&#13;</p>
<p>Yes, there are lots of unauthorized copies being made out there. But despite what Hollywood's spokesmen would have us believe, the sky is not falling. In fact, as we ring in 2010, many industries would happily trade places with the major Hollywood movie studios. </p>
</div></div></div>Fri, 01 Jan 2010 03:57:23 +000060883 at https://www.eff.orgCommentaryFair UseFile SharingHollywood v. DVDFred von LohmannSupport EFF's International Work!https://www.eff.org/ar/deeplinks/2009/12/support-effs-international-work
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The Internet is global, and so are threats to digital freedom. Over the past year, the Electronic Frontier Foundation (EFF) has fought Internet censorship, oppressive copyright laws and privacy violations wherever they've been under threat around the world.</p>
<p>With the help of our global partners and supporters like you, EFF has been able to achieve great things over the past year:</p>
<ul><li><b>Protecting Freedom of Expression</b>.EFF helped establish the Global Network Initiative, garnering commitments from leading technology companies worldwide to resist pressure from government censors in repressive countries and to advance freedom of expression in their products and services.</li>
<li><b>Making Information More Accessible</b>. EFF helped make knowledge and information accessible to more people across the world by fighting for exceptions and limitations to copyright for the reading disabled, for libraries and archives, for educational purposes, and for innovative services.</li>
<li><b>Assembling the World's Copyright Laws</b>. EFF helped create Copyright-Watch.org, the most comprehensive publicly available database of international copyright laws ever assembled. Currently including the laws of 187 countries, Copyright-Watch.org was created to strengthen the global network of copyright experts, to facilitate comparative policy research, and to provide for national advocacy support.</li>
<li><b>Creating Global Privacy Standards</b>. EFF worked with public interest organizations from every continent to create international standards for privacy that ensure the priority of civil rights in the face of increasing surveillance and monitoring.</li>
<li><b>Influencing European Internet Policy</b>. EFF collaborated with digital rights and consumer protection advocates in Europe to preserve judicial oversight and due process in IP enforcement efforts and to fight Three Strikes proposals.</li>
<li><b>Promoting Access to Knowledge in Developing Countries</b>. EFF promoted access to knowledge in the developing world by encouraging government bodies to create interoperability standards that encouraged universal access.</li>
<li><b>Exposing the Lack of Transparency in Trade Negotiations</b>. EFF led the battle to shed sunlight on the proposed Anti-Counterfeiting Trade Agreement, a secret multi-national pact that could severely limit digital rights.</li>
<li><b>Fighting Against Abuse of Cybercrime Legislation</b>. EFF supported local activists in Brazil, Kazakhstan, and Thailand fighting against the abuse and misuse of cybercrime laws to suppress legitimate activity. EFF also fought to secure privacy rights and civil liberties protections in the legislative implementation of the Council of Europe Cybercrime Convention.</li>
</ul><p>This is but a sample of the things we've worked on in 2009. For more information about our international mission, see http://www.eff.org/issues/international.</p>
<p>Please donate to EFF today, and join us in the fight for a free and open Internet:</p>
<p>http://www.eff.org/give</p>
<p>Thanks in advance for your support!</p>
<p>Happy Holidays from EFF's International Team</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ar//cases/eff-and-public-knowledge-v-ustr">Anti-Counterfeiting Trade Agreement (ACTA)</a></div></div></div>Tue, 22 Dec 2009 23:26:45 +000060880 at https://www.eff.orgAnnouncementTransparencyFree SpeechFair UseInternationalPrivacyFile SharingWIPOEuropean UnionCreativity & InnovationDevelopment AgendaAnti-Counterfeiting Trade AgreementThe Global Network InitiativeReading AccessibilityEddan KatzDVR is TV's New BFFhttps://www.eff.org/ar/deeplinks/2009/11/dvr-tvs-new-bff
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Digital Video Recorders, once considered a mortal threat by the entertainment industry, have now become its new best friend. It's just the latest example of how the industry's constant warnings of the dangers of "piracy" frequently turn out to be baseless hysteria.&#13;</p>
<p>Remember 2001? Digital Video Recorders ("DVRs") like TiVo and ReplayTV were poised to win mainstream adoption, allowing consumers to fast-forward past advertisements more easily than before. In response, the entertainment industry behaved predictably — it freaked out and filed a bunch of lawsuits.&#13;</p>
<p>Industry analysts claimed that DVR "potentially <a href="http://www.medialifemagazine.com/news2001/nov01/nov12/4_thurs/news4thursday.html">threatens the very lifeblood</a> of how television is funded and how it's used for marketing and advertising." A coalition of television studios including Viacom, Disney, and NBC <a href="http://www.thestreet.com/story/10035157/1.html">filed suit</a> against SonicBlue, makers of ReplayTV, arguing that skipping commercials "effectively circumvents the means of payment to copyright owners for the programming being viewed... (and) thus constitutes copyright infringement."&#13;</p>
<p>Fast-forward eight years, and these claims turn out to be — surprise! — wrong. This weekend, The New York Times announced that "DVR ratings <a href="http://www.nytimes.com/2009/11/02/business/media/02ratings.html?pagewanted=all">now add significantly to live ratings</a> and thus to ad revenue." &#13;</p>
<p>A mystified NBC President Of Research called the situation "completely counterintuitive." But the reason behind the revenue isn't counterintuitive at all — it's obvious: When consumers are granted the ability to watch television whenever and however they want, they watch <em>more</em> TV — not less. That's a simple result which could only be "counterintuitive" to an industry that all too frequently treats its own best customers like criminals.&#13;</p>
<p>It's a cycle that by now has become sadly familiar: When the industry meets a new technology, it panics and fights it tooth-and-nail. Eventually, the industry loses this fight, often <a href="http://www.eff.org/deeplinks/2008/10/why-hollywood-hates-realdvd">squashing innovation</a> or arbitrarily singling out a few citizens for <a href="http://www.eff.org/wp/riaa-v-people-years-later#4">punishment</a> along the way. Finally, the same technology ends up benefiting the same short-sighted industry — but rather than learn their lesson, the same corporations are usually busy repeating the same cycle all over again with something else. It happened with the <a href="http://news.slashdot.org/article.pl?sid=02/05/31/1622232">VCR</a>, the <a href="http://en.wikipedia.org/wiki/Home_Taping_Is_Killing_Music">audio cassette</a>, and even the <a href="http://www.eff.org/deeplinks/2004/03/wicked-player-piano">turntable</a>.&#13;</p>
<p>With a track-record like this, it's mind-boggling that the entertainment industry's schemes to "fight piracy" retain any credibility whatsoever. Unfortunately, thanks in large part to the industry's deep coffers, many in government continue to take their claims seriously. As a result, the UK is close to implementing a <a href="http://www.eff.org/deeplinks/2009/10/uk-and-three-strikes-what-not-do-election-year">"three-strikes"</a> policy of disconnecting illegal file-sharers from the Internet — even as a new poll reveals that those same file-sharers are <a href="http://www.boingboing.net/2009/11/01/heavy-illegal-downlo.html">the industry's best customers</a>. Here in the USA, Hollywood is once again lobbying the FCC to introduce <a href="http://www.eff.org/deeplinks/2009/10/hollywood-pressuring-fcc-selectable-output-control">"Selectable Output Control"</a> — a scheme which would grant the industry veto-power over new technologies.&#13;</p>
<p>Until legislators learn to stop trusting the entertainment industry's faulty "intuition," laws will continue to hurt innovation, consumers, and — yup — even the very industry they've been designed to protect.&#13;</p>
</div></div></div>Mon, 02 Nov 2009 21:40:20 +000060832 at https://www.eff.orgCommentaryDRMBroadcast FlagFile SharingAnalog HoleCreativity & InnovationTim JonesWashington DC Legislative Rounduphttps://www.eff.org/ar/deeplinks/2009/10/washington-dc-roundup
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>
In DC, the summer doldrums have ended, and Congress has begun a flurry of activity. Legislators are in the midst of considering several important bills:
</p>
<ul><li>
<p><a href="http://www.opencongress.org/bill/111-h1319/show">The Informed P2P User Act</a> is the latest effort from Rep. Mary Bono Mack, who in 1998 gave us the <a href="http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">Mickey Mouse Protection Act</a>. The bill is ostensibly aimed at protecting users of peer-to-peer file-sharing software from accidentally sharing their private information. Unfortunately, it takes a paternalistic approach that assumes that more pop-up warnings and FTC enforcement actions will somehow stop users from misconfiguring their software. <a href="http://www.publicknowledge.org/node/2674">Public Knowledge has the details</a>. The House is due to vote on it soon; let's hope they send it back to committee for refinement.
</p>
</li>
<li>
<p>
<a href="http://www.opencongress.org/bill/111-h1966/show">The Megan Meier Cyber-Bullying Prevention Act</a>'s sponsors <a href="http://www.huffingtonpost.com/eugene-volokh/rep-linda-sanchez-defends_b_199556.html">claim</a> that it's designed to protect children from abuse. Unfortunately, the bill would ban any online speech which could be perceived as intended "to coerce, intimidate, harass, or cause substantial emotional distress to a person." As Professor Eugene Volokh points out, this would <a href="http://www.huffingtonpost.com/eugene-volokh/rep-linda-sanchez-defends_b_199556.html">criminalize online free speech</a> as we know it.
</p>
<p>
The bill received <a href="http://www.wired.com/threatlevel/2009/09/cyberbullyingbill/">a chilly reception last week</a> in a subcomittee hearing last week. Let's hope it goes no further.
</p>
<p>
An alternate bill called <a href="http://www.opencongress.org/bill/111-h3630/show&lt;br /&gt;&#10;">The AWARE Act</a> would attempt to address "cyber-bullying" issues by providing funding for childhood <a href="http://arstechnica.com/tech-policy/news/2009/10/two-cyberbullying-bills-duke-it-out-in-house-committee.ars">online safety education</a> — a much less invasive and more appropriate strategy.
</p>
</li>
<li>
<p>
Other problematic laws continue to lurk in the hallways of Congress. Congressional Quarterly reported last week that Democratic leadership is working hard to bring <a href="http://www.eff.org/deeplinks/2009/08/pass-id-real-id-reanimated&lt;br /&gt;&#10;">PASS ID</a>, the national identification card scheme, to the floor. Senators Snowe and Rockefeller continue to promote <a href="http://www.eff.org/deeplinks/2009/09/cybersecurity-act-returns-with-a-fresh-coat-of-paint">The Cybersecurity Act of 2009</a>, which would grant the President power to shut down the Internet. And, as we noted earlier today, a proposal from Senator Chuck Schumer is <a href="http://www.eff.org/deeplinks/2009/10/shield-law&lt;br /&gt;&#10;">threatening</a> to deny bloggers the protections of an important press shield law.
</p>
</li>
<li>
<p>
Most importantly, the battle for meaningful PATRIOT Act reform continues, even in the wake of Thursday morning's <a href="http://www.eff.org/deeplinks/2009/10/round-reactions-yesterdays-patriot-vote">unfortunate markup</a>. If you pick only one issue to <a href="https://secure.eff.org/site/Advocacy?id=441">contact your representatives about</a>, this is it.
</p>
</li>
</ul></div></div></div>Fri, 09 Oct 2009 20:48:03 +000060809 at https://www.eff.orgLegislative AnalysisFree SpeechFile SharingTim JonesUK Musicians Oppose Draconian Disconnect Policyhttps://www.eff.org/ar/deeplinks/2009/09/uk-musicians-oppose-draconian-disconnect-policy
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The UK government still seems unsure as to whether it's a good idea to punish those accused of illegal downloading by <a href="http://www.openrightsgroup.org/2009/08/new-fast-track-clampdown-proposals-expected-today/">cutting off Internet access</a> for entire households, saying it wants to <a href="http://www.openrightsgroup.org/2009/08/new-fast-track-clampdown-proposals-expected-today/">"support"</a> the music industry. But now it seems a coalition of the actual British musicians, songwriters and producers behind the music don't want "support" of this kind, and view this sort of draconian policy as "extraordinarily negative."&#13;</p>
<p>Thankfully, there are some people in the UK who think this sort of draconian policy is a terrible idea, and are taking a stand against it — namely, the British music community.&#13;</p>
<p>The Guardian <a href="http://www.guardian.co.uk/technology/2009/sep/03/youtube-prs-deal-file-sharing">reports</a>:&#13;</p>
<blockquote><p>A rift has opened between music's creators and its record labels, with a broad alliance of musicians, songwriters and producers fiercely criticising the business secretary Lord Mandelson's plans to cut off the broadband connections of internet users who illegally download music.&#13;</p>
<p>In a statement seen by the Guardian, a coalition of bodies representing a range of stars including Sir Paul McCartney, Sir Elton John and Damon Albarn attacks the proposals as expensive, illogical and "extraordinarily negative".&#13;</p>
<p>The Featured Artists Coalition (FAC), the British Academy of Songwriters, Composers and Authors (Basca) and the Music Producers Guild (MPG) have joined forces to oppose the proposals to reintroduce the threat of disconnection for persistent file sharers, which was ruled out in the government's Digital Britain report in June.</p>
</blockquote>
<p>Aside from the obvious problem of meting out punishment to anyone <i>accused</i> of a crime, the decision to cut off access to the Internet is disproportionate and, in the many cases where more than one person uses a computer or IP connection, amounts to collective punishment as well. If the government is not interested in hearing the cries of outrage from the public, perhaps they will heed the words of the many talented folks who make the culture behind the culture industry.</p>
</div></div></div>Sat, 05 Sep 2009 00:09:02 +000060776 at https://www.eff.orgCommentaryFile SharingHugh D&#039;AndradeFrance Declares Three Strikes Unconstitutionalhttps://www.eff.org/ar/deeplinks/2009/06/three-strikes-dead-in-france
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Before legislation becomes law in France, it must pass the muster of the <a href="http://en.wikipedia.org/wiki/Conseil_constitutionnel">Conseil Constitutionnel</a>: a group of jurists who determine whether each new law is consistent with the principles and rules of France's constitution. &#13;</p>
<p>For the passage of Sarkozy's unpopular "three strikes" <a href="http://en.wikipedia.org/wiki/HADOPI">HADOPI</a> legislation, the approval of the Conseil was the final hurdle to cross. If the council had approved the law, rightsholders in France would have been able to cast French citizens off the Internet with no judicial oversight, simply by alleging to the new HADOPI administrative body that they were repeat copyright infringers. These citizens would then have their names added to a national Internet blacklist for up to a year, and ISPs would be subject to financial penalties if they gave these exiles access to the Internet.&#13;</p>
<p>Today, the Conseil <a href="http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/2009/decisions-par-date/2009/2009-580-dc/decision-n-2009-580-dc-du-10-juin-2009.42666.html">declared</a> the most important parts of HADOPI unconstitutional, and invalidated HADOPI's ability to issue termination orders to ISPs. In doing so, it seems to have effectively put an end to the central idea behind France's Three Strikes law - the creation of an expedited (and potentially due process-free) administrative process for terminating citizens' access to the Internet. &#13;</p>
<p>In a clear rebuke, the Conseil stated that the French legislature did not have the right to pass controls on Internet access to a non-judicial authority, as this would violate Article 11 (the right of freedom of speech) of the 1789 <a href="http://www.hrcr.org/docs/frenchdec.html">Declaration of the Rights of Man</a>; and that in bypassing judicial review, the law also violated Article 9, which states that all are presumed innocent until declared guilty.&#13;</p>
<p>This stark recognition that HADOPI goes against two of the most basic, universal, human rights should give any government pause before considering adopting similar legislation. Given the continuing failure of efforts to introduce HADOPI-like plans in New Zealand (where <a href="http://www.eff.org/deeplinks/2009/02/new-zealand-goes-all-black-against-three-strikes">the government backed down</a>), Ireland (<a href="http://www.eff.org/deeplinks/2009/03/irish-blackout">where ISPs stood up</a>), and now in France, will global policymakers now resist the media industries' push for these wrong-headed termination proposals, and seek more reasonable and just solutions to the challenges these businesses now face in the digital age? Let's hope that the French constitutional court's rejection of HADOPI marks the final strike for "three strikes".</p>
</div></div></div>Wed, 10 Jun 2009 23:48:59 +000060716 at https://www.eff.orgCommentaryFree SpeechInternationalFile SharingEuropean UnionDanny O&#039;BrienDanger Mouse Releases a Blank CD-Rhttps://www.eff.org/ar/deeplinks/2009/05/danger-mouse-inducem
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>For decades, recording artists have lived in fear of their albums <a href="http://www.eff.org/deeplinks/2005/03/noninfringing-use-p2p-free-fiona">ending up in limbo</a> if a record label refused to release it. But no more? Danger Mouse, who broke into the public consciousness with his remarkable <a href="http://www.illegal-art.org/audio/grey.html">Grey Album</a> remixing Jay-Z and The Beatles and went on to form Gnarls Barkley, is apparently counting on the fact that it's the fans, not record labels like EMI, who have the upper hand in the digital age.&#13;</p>
<p>Danger Mouse has been working on a collection called "<a href="http://www.dnots.com/">Dark Night of the Soul</a>." Apparently, relations with EMI on the project have broken down, resulting in Danger Mouse issuing this statement:&#13;</p>
<blockquote><p>Danger Mouse's new project Dark Night Of The Soul consists of an album length piece of music by Danger Mouse, Sparklehorse and a host of guest vocalists, along with a collection of original David Lynch photography inspired by and based on the music. The photographs, which provide a visual narrative for the music, are compiled in a limited edition, hand numbered 100+ page book which will now come with a blank, recordable CD-R. All copies will be clearly labeled: "For Legal Reasons, enclosed CD-R contains no music. Use it as you will." </p>
</blockquote>
<p>In other words, Danger Mouse is counting on fans getting the music elsewhere (it leaked on P2P networks on May 7 and is currently available as an <a href="http://www.npr.org/templates/story/story.php?storyId=104129585&amp;sc=nl&amp;cc=asc-20090514">on-demand from NPR</a>) and burning it to the CD-R included with the book. &#13;</p>
<p>Some copyright lawyers may ask whether Danger Mouse is "<a href="http://www.eff.org/deeplinks/2005/06/what-inducement">inducing</a>" copyright infringement by encouraging fans to make these unauthorized copies (this assumes EMI owns the copyright in the sound recordings that make up "Dark Night of the Soul," which would be typical in a major label deal). &#13;</p>
<p>Here's where an interesting copyright law wrinkle might step in -- if the blank CD-R is a royalty-paid "music CD-R," then the copies made by fans (whether made from NPR or P2P) would be legal under <a href="http://www.copyright.gov/title17/92chap10.html#1008">17 U.S.C. 1008</a>, which provides that no infringement lawsuit may be "based on the noncommercial use by a consumer of [a digital audio recording] medium for making digital musical recordings." Digital audio recording medium (DARM) is defined to include "music CD-Rs" on which a royalty is paid to copyright owners. &#13;</p>
<p>All this just underscores what the digital world has been telling record labels for a decade: we don't need you for distribution. At least for Danger Mouse, the fans will be taking care of that themselves. </p>
</div></div></div>Tue, 19 May 2009 05:20:49 +000060693 at https://www.eff.orgLegal AnalysisFair UseFile SharingFred von Lohmann